Opinion issued October 29, 2019




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-18-00392-CV
                          ———————————
                       JACK PERMISON, Appellants
                                      V.
               CARRIE MORRIS & DAVE WARD, Appellees


                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 15-DCV-225441


                        MEMORANDUM OPINION

      Jack Permison rented a room in a house in Fort Bend County from appellee

Carrie Morris. Although he left before his lease ended, he was later judicially

evicted. He contends that he was forced to leave the house by the actions of the

appellees: Carrie Morris and her boyfriend, Dave Ward. Permison sued them both
for: (1) breach of contract; (2) negligence; (3) interference with property rights and

constructive eviction; (4) premises liability and gross negligence; (5) failure to

refund security deposit; (6) wrongful eviction; (7) common law fraud; (8) willful

disclosure   of   incorrect   ownership    information;   (9)   damage    to   credit;

(10) retaliation; (11) exemplary damages; and (12) conspiracy.

      The court granted Ward’s no-evidence motions for summary judgment and

dismissed with prejudice all the claims against him, except for negligence, which

was not submitted to the jury at trial. In his first three issues on appeal, Permison

challenges the trial court’s summary judgments as to Ward. After the close of

evidence at trial, the court granted Morris’s motions for directed verdict as to

several claims against Morris: (1) interference with property rights and

constructive eviction; (2) premises liability and gross negligence; (3) common law

fraud; and (4) damage to credit. In his fourth issue on appeal, Permison challenges

the directed verdicts.

      We affirm.

                                    Background

      Carrie Morris advertised for rent a furnished private bedroom and private

bathroom “in paradise***free of drama.” Morris described the house as “beautiful”

and “resort-style,” and she advised anyone who is a “a nut case, drama queen,




                                          2
weirdo, slob, or psycho” to stay away, stating that she wanted a “peaceful relaxing

calm beautiful place to come home to after a long day at work.”1

      Permison, a helicopter pilot, responded to Morris’s advertisement. Permison

and Morris discussed their shared interest in helicopters, and Morris told Permison

that her boyfriend, Dave Ward, also was a pilot. Permison agreed to rent the room

from Morris beginning March 23, 2015 and continuing month-to-month thereafter.

The agreement was not in writing, and Permison paid Morris approximately $1200.

After Permison moved in, he became friendly with Morris and Ward.2 Several days

after he moved in, Permison informed Morris that he had found mice in the house.

According to Permison, around the same time, Morris made a sexual advance

toward him, which he rebuffed. Morris denied this entirely. The friendly text

messages between them stopped a few days later.3


1
      The appellate record in this case includes transcripts of phone calls involving
      Permison and either Ward or Morris as well as a copy of the text messages
      exchanged between Permison and Morris. These documents were submitted as
      summary-judgment evidence. The trial court did not rule on the defendants’
      objections that the transcripts and text messages were not properly authenticated
      and are hearsay.
2
      Morris invited Permison to go fishing with her children, and Permison invited
      Morris to take helicopter rides. Ward loaned Permison a car to save him the
      expense of renting one, saying, “in aviation you are supposed to take care of each
      other.” Permison helped Morris with a computer problem. When Permison found a
      kitten, Morris helped name it and kept it overnight.
3
      Morris and Permison communicated by text message and phone call because
      during the time Permison stayed in Morris’s house, Morris was temporarily
      staying at Ward’s house.
                                           3
      About two weeks after Permison moved in, Ward asked him to store some of

Morris’s personal property in the closet of the master bedroom he was renting.4

Permison initially agreed, but when he saw the quantity of belongings that had

been left outside the house, he refused to move them into his room. Morris later

testified that she knew the property would fit because she had previously stored it

in the second closet in Permison’s room and under the bed.

      The next day, Morris asked Permison if he had put the property into the

closet, saying she did “not want it left outside.” Permison told her there was not

“enough room in that closet for all that.” Over the next several minutes, Morris

sent several acrimonious text messages, told Permison to leave her house, and said

she was evicting him. After additional, heated text messages, Morris told Permison

to sue Ward, saying, “Dave’s the owner of my house. Sue him. He holds the title.

He gets the money.” Permison told her, “Dave isn’t the landlord. You are. My

agreement is with you.” Morris made some vulgar personal remarks, and she

blamed Permison for her current discord with Ward. Permison told Morris that he

would leave if she refunded his money and paid for a week’s stay at a hotel.

      Permison called Ward, and he explained that the property would not fit in

his room and that the living situation was not working out. He conceded that he



4
      Ward described the property as “a bunch of blankets and pillows and a little single
      mattress probably four or five of them.”
                                           4
had to work out the problem with Morris, because “my agreement is with her, she

is the owner of the house not you.” Permison also suggested that Morris was upset

about something other than the property storage. Ward maintained that he was a

“third party” the room rental agreement, and he agreed that if the living situation

was not working out, Permison should move out.

      Several hours after the telephone conversation and text thread, Morris went

to the house and placed mothballs in shared spaces, near Permison’s bedroom, and

outside the house. Permison and another tenant, Mike Brewster, confronted her

about the quantity of mothballs she had used and their toxicity. Permison made a

video recording of Brewster yelling profanities and demands at Morris, who

attempted to placate him. At the end of the video, another man is heard laughing,

but Permison denied that he had laughed.

      After Morris left, Permison and the other tenants discarded most of the

mothballs. Permison slept in the rented room that night, and the next morning, he

sought treatment at an emergency room for difficulty breathing, vomiting, and

headache. He was diagnosed with “aching headache” and “exposure to chemical

inhalation.”5 Permison never returned to the house.


5
      A nursing note in Permison’s medical record stated: “Spoke with Poison Control,
      patient to stay away from mothballs and get house cleaned up. Bobby, Poison
      Control, states that nausea, vomiting, diarrhea and headache are only symptoms of
      mild exposure and will resolved upon staying away from them.”

                                          5
      At some point, Permison told Ward that Morris tried to kiss him, but he

rebuffed her advances. While he was in the emergency room, Permison spoke to

Ward, advising him that he would “be better off” if he were to “get rid of her.” A

few days later, Ward and Morris reconciled. Ward then told Permison that he

owned the house in which Permison had rented a room and that his name was on

the deed.6 Ward also informed Permison that he had instituted eviction proceedings

against him. Morris later testified that Ward was attempting to protect her from

harsh treatment by Permison and Brewster.

      Four days after Permison left the house, Morris filed a complaint for

eviction. Ward’s name was initially listed as a landlord on the handwritten form,

but it was crossed out and initialed “CM.” The justice of the peace court rendered

judgment in favor of Morris. Permison appealed to the County Court at Law No. 3,

but he later nonsuited his appeal.

      Permison later sued both Morris and Ward for (1) breach of contract;

(2) interference with property rights and constructive eviction; (3) premises

liability and gross negligence; (4) failure to refund security deposit; (5) wrongful

eviction; (6) common law fraud; (7) willful disclosure of incorrect ownership

information; (8) damage to credit; (9) retaliation; (10) exemplary damages; and


6
      Permison replied, “That’s interesting because it doesn’t come up that way on
      the—okay, well that creates a dilemma for me. But you are not back together with
      Carrie at all?” Ward replied, “Well, she’s still at the house. That’s all irrelevant.”
                                            6
(11) conspiracy. Permison’s claims were based on his allegations that both Morris

and Ward were the landlords and acted together, that Morris told him to leave

when he refused to store her property, and that Morris “placed a deadly amount of

mothballs” on the premises.

      Permison, Morris, Brewster, and another former tenant, Brenda Jones,

testified at trial. Permison testified that he rented a room from Morris, rebuffed her

sexual advances, and refused to store her belongings in his room because they

would not fit. He also testified that Morris used an excess of mothballs that caused

him to suffer an inhalation injury, even though the mothballs were promptly

gathered and discarded. Brewster and Jones corroborated Morris’s use of

mothballs. Morris denied having made sexual advances on Permison. She testified

that she used the mothballs as pest control and, having grown up in the country,

she described this use as commonplace. She said she never read the warning on the

package.

      After the close of evidence, the trial court granted directed verdict in favor

of Morris on Permison’s claims of (1) interference with property rights and

constructive eviction; (2) premises liability and gross negligence; (3) common law

fraud; and (4) damage to credit. The jury found in favor of Permison on his

retaliation claim, and it awarded damages of $1,269.03. The trial court rendered




                                          7
judgment on the verdict in favor of Permison for $1,269.03 for retaliation and

$5,000 in attorney’s fees.

                                     Analysis

      On appeal, Permison challenges the pretrial summary judgments in favor of

Ward and the directed verdicts in favor of Morris.7

I.    Summary judgment standards of review

      “A no-evidence summary judgment is essentially a pretrial directed verdict,

and we apply the same legal sufficiency standard in reviewing a no-evidence

summary judgment as we apply in reviewing a directed verdict.” King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). “After an adequate time for

discovery,” a party may seek 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.” TEX. R. CIV. P. 166a(i). A

no-evidence summary judgment motion “must state the elements as to which there

is no evidence.” Id. The burden then shifts to the nonmovant to “produce[]

summary judgment evidence raising a genuine issue of material fact.” Id. Once the

movant specifies the elements on which there is no evidence, the burden shifts to

7
      The jury found that Permison and Morris had an agreement for the lease of a room
      for $700 per month, but it found that Morris did not breach the agreement. The
      jury found that Morris retaliated against Permison, and it assessed damages of
      $1269.03 and attorneys’ fees of $5,000. The jury also found that Morris did not
      fail to return Permison’s security deposit in bad faith. No issue regarding
      Permison’s claims against Ward was submitted to the jury.
                                          8
the nonmovant to raise a fact issue on the challenged elements. Id. If the

nonmovant fails to produce evidence that raises a genuine issue of material fact,

the trial court must grant the motion in favor of the movant. A no-evidence

summary judgment will be sustained on appeal “when (a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered by the nonmovant to

prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital

fact.” King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–

63 (1960))).

      “Summary judgment evidence may be filed late, but only with leave of

court.” Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). “Except

on leave of court,” the nonmovant’s summary judgment evidence must be filed and

served at least seven days before the summary judgment hearing. TEX. R. CIV.

P. 166a(c). “[T]he court has discretion to accept late-filed evidence, but it is not

obliged to do so.” Barnett v. Veritas DGC Land Inc., No. 14-05-01074-CV, 2006

WL 2827379, at *5 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, pet. denied)




                                          9
(mem. op.) (court did not abuse its discretion by refusing to consider evidence

attached to motion for reconsideration).

      “A trial court may accept summary judgment evidence filed late, even after

summary judgment, as long as the court affirmatively indicates in the record that it

accepted or considered the evidence.” Mathis v. RKL Design/Build, 189 S.W.3d

839, 842–43 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Stephens v.

Dolcefino, 126 S.W.3d 120, 133–34 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied). “Leave to late-file summary-judgment evidence may be reflected in a

separate order, a recital in the summary judgment, or an oral ruling contained in

the reporter’s record.” Lesikar v. Moon, No. 14-16-00299-CV, 2017 WL 4930851,

at *11 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017, no pet.) (mem. op.).

      In his brief, Ward contends that the trial court should have disregarded the

evidence filed in response to the first no evidence motion for summary judgment,

because it was filed four hours late. See TEX. R. CIV. P. 166a(c). Permison’s

response included a motion for leave to file a late response, which explained that

his attorney experienced “technical difficulties” with electronic filing due to the

size of the file. He asked that he be permitted to file his response four hours late.

      In its order granting the first summary judgment motion in favor of Ward,

the trial court stated that it had considered the response. We reject Ward’s

contention that we must ignore Permison’s summary judgment evidence and


                                           10
conclude that it was considered by the trial court. See Adi v. Rapid Bail Bonding

Co., No. 01-08-00290-CV, 2010 WL 547474, at *3 n.6 (Tex. App.—Houston [1st

Dist.] Feb. 18, 2010, no pet.) (mem. op.).

      Summary judgment evidence may consist of affidavits, the opposing party’s

discovery responses, pleadings, admissions, stipulations, and authenticated or

certified public records. See TEX. R. CIV. P. 166a(c). “A summary judgment may

be based on uncontroverted testimonial evidence of an interested witness, or of an

expert witness as to subject matter concerning which the trier of fact must be

guided solely by the opinion testimony of experts, if the evidence is clear, positive

and direct, otherwise credible and free from contradictions and inconsistencies, and

could have been readily controverted.” Id. “Sworn or certified copies of all papers

or parts thereof referred to in an affidavit shall be attached thereto or served

therewith.” TEX. R. CIV. P. 166a(f). “Copies of documents attached to a properly

prepared affidavit indicating the copies are ‘true and correct’ are sworn copies.”

Coastal Cement Sand Inc. v. First Interstate Credit All., Inc., 956 S.W.2d 562, 567

(Tex. App.—Houston [14th Dist.] 1997, pet. denied). But a statement that an

unsworn document attached to an affidavit is a “true and correct copy” is not an

affirmative indication that the facts contained in the unsworn document are

themselves true and correct. See id.




                                         11
      Unsworn witness statements are not competent summary judgment evidence.

See Kolb v. Scarbrough, No. 01-14-00671-CV, 2015 WL 1408780, at *4 (Tex.

App.—Houston [1st Dist.] Mar. 26, 2015, no pet.) (citing Judge David Hittner &

Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 46

Hous. L. Rev. 1379, 1470 (2010) (evidence such as “unsworn witness statements,

expert’s reports, or unauthenticated documents” are not “proper summary

judgment evidence and cannot defeat a no-evidence summary judgment

motion.”)); Coastal Cement Sand, 956 S.W.2d at 567. Incompetent summary

judgment evidence cannot create a genuine question of material fact, and therefore

it will not defeat a motion for summary judgment. See Elizondo v. Krist, 415

S.W.3d 259, 264 (Tex. 2013) (conclusory statements); HighMount Expl. & Prod.

LLC v. Harrison Interests, Ltd., 503 S.W.3d 557, 568 (Tex. App.—Houston [14th

Dist.] 2016, no pet.); McKeehan v. McKeehan, 355 S.W.3d 282, 296 (Tex. App.—

Austin 2011, pet. denied).

II.   Ward’s no-evidence motions for summary judgment were properly
      granted.

      Permison’s first three issues challenge the trial court’s rulings dismissing his

claims against Ward. He argues that the trial court erred by granting Ward’s first

and second motions for summary judgment, and, in his third issue, he argues that

Ward acted either on his own or with Morris—as coconspirator, co-owner, or

agent—to cause his damages. Ward’s first no evidence motion for summary

                                         12
judgment challenged the claims made in the second amended petition: breach of

contract, negligence, constructive eviction, wrongful eviction, premises liability,

failure to refund security deposit, common law fraud, damage to credit, and

exemplary damages. The trial court granted the motion and dismissed the

challenged claims and Permison’s conspiracy claim. When the error of dismissing

the unchallenged conspiracy claim was raised, the trial court signed an amended

nunc pro tunc order clarifying that the conspiracy claim had not been dismissed.

Ward then challenged the conspiracy claim in his second no evidence motion for

summary judgment.

A.    Ward’s first no evidence motion for summary judgment

      In response to Ward’s first no evidence motion for summary judgment,

Permison provided his affidavit, photographs of mothballs that had been cleaned

up from the house, a transcript of text messages exchanged between him and

Morris, and transcripts of phone conversations he had with Morris and with Ward.

In his affidavit, he averred that the transcripts of text messages and recorded phone

calls were true and correct copies. But he did not aver that the statements in those

documents were true and correct.

      Permison’s claims against Ward depended on a finding that Ward was his

landlord, the owner of the house, or that he engaged in a conspiracy with Morris.




                                         13
      1.     Permison provided no evidence that he had a contract with Ward,
             that Morris was Ward’s agent, or that he owned the house.

      To prevail on a claim for breach of contract, the plaintiff must establish the

following elements: (1) the existence of a valid contract; (2) performance or

tendered performance by the plaintiff; (3) breach of the contract by the defendant;

and (4) damages sustained by the plaintiff because of the breach. See USAA Tex.

Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018); S. Elec. Servs.,

Inc. v. City of Houston, 355 S.W.3d 319, 323–24 (Tex. App.—Houston [1st Dist.]

2011, pet. denied). The elements of a valid contract are (1) an offer; (2) an

acceptance; (3) a meeting of the minds; (4) mutual consent to the terms; and, in the

case of a written contract, (5) execution and delivery of the contract with the intent

that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d

631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “Mutual assent,

concerning material, essential terms, is a prerequisite to formation of a binding,

enforceable contract.” Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526,

530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing T.O. Stanley Boot Co. v.

Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).

      “The necessary elements of written and oral contracts are the same and must

be present for a contract to be binding.” Peine v. Elite Airfreight, Inc., No. 01-14-

00860-CV, 2016 WL 4253836, at *3 (Tex. App.—Houston [1st Dist.] Aug. 11,

2016, no pet.) (mem. op.); see Wal–Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555

                                         14
(Tex. App.–Houston [14th Dist.] 2002, no pet.). “In determining the existence of

an oral contract, courts look to the communications between the parties and to the

acts and circumstances surrounding those communications.” Peine, 2016 WL

4253836, at *3.

      In his motion for summary judgment, Ward argued that there was no

evidence of breach of contract, because there was no evidence that he and

Permison ever entered into an agreement and because he was not the record owner

of the house. In response, Permison relied on text messages from Morris sent

approximately two weeks after he moved into the house in which she stated that

Ward owned the house, transcribed phone calls he had with Ward, and a posted

notice to vacate that identified Ward as a landlord. Permison also asserted that

Morris was Ward’s agent.

      Permison’s evidence does not demonstrate that he had a contract with Ward.

The text messages, phone calls, and the posted notice do not show that Ward

owned the house or entered into an agreement with Permison. These attachments to

Permison’s affidavit are essentially unsworn statements of a witness, and therefore

not competent summary judgment evidence. See Kolb, 2015 WL 1408780, at *4.

They are insufficient to create a genuine question of material fact regarding

whether Ward owned the house or had an agreement with Permison. See Coastal

Cement Sand, 956 S.W.2d at 567.


                                        15
      Permison argues that the statements made by Ward were judicial admissions.

We disagree. Judicial admissions must be made in the course of a judicial

proceeding, and the conversations and text message exchanges that Permison relies

on were not made in the course of a judicial proceeding. See Cohen v. Tour

Partners, Ltd., No. 01-15-00705-CV, 2017 WL 1528776, at *5 (Tex. App.—

Houston [1st Dist.] Apr. 27, 2017, no pet.) (mem. op.); H2O Sols., Ltd. v. PM

Realty Grp., LP, 438 S.W.3d 606, 617 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied).

      None of Permison’s proffered summary judgment evidence supports an

inference of any offer made by Ward or acceptance by Permison, nor does it

demonstrate a meeting of the minds or mutual assent to the terms of a contract

except between Permison and Morris. See Prime Prods., 97 S.W.3d at 636.

      Permison argues that Morris was acting as Ward’s agent. But an “agent’s

authority to act on behalf of a principal depends on some communication by the

principal either to the agent (actual or express authority) or to the third party

(apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex.

2007); see also Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex. App.—

Houston [1st Dist.] 1984, writ ref’d n.r.e.). Nothing in the summary judgment

evidence indicates that Ward communicated to Morris or to Permison that Morris

was acting as his agent. We conclude that the trial court properly granted summary


                                       16
judgment as to breach of contract. Damage to credit is not an independent tort in

Texas, rather it is an element of breach of contract damages. See Gabriel v.

Associated Credit Union of Texas, No. 14-12-00349-CV, 2013 WL 865577, at *4

n.8 (Tex. App.—Houston [14th Dist.] Mar. 7, 2013, pet. denied) (mem. op.) (citing

Mead v. Johnson Grp. Inc., 615 S.W.3d 685, 688 (Tex. 1981)). Accordingly, the

trial court did not err by dismissing Permison’s claim for damage to credit.

      2.     Permison’s other claims fail because they all depend on findings
             that Ward was the landlord and owner of the house.

      Several of Permison’s other claims also fail because there is no evidence that

Ward was Permison’s landlord or the owner of the house. These include

constructive eviction and interference with property rights,8 wrongful eviction,9


8
      Constructive eviction requires conduct by the landlord that “materially interferes
      with the tenant’s beneficial use of the premises.” Richardson v. SV Almeda I Ltd.
      P’ship, No. 01-11-01004-CV, 2013 WL 4680392, at *7 (Tex. App.—Houston [1st
      Dist.] Aug. 29, 2013, no pet.) (mem. op.) (stating elements of cause of action for
      constructive eviction); see Pinter v. Asafi Law Firm, No. 01-12-00048-CV, 2012
      WL 5458426, at *4 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem.
      op.) (“A cause of action for tortious interference with the peaceful use and
      enjoyment of property is a claim for intentional interference with property
      rights.”).
9
      “To establish a claim for wrongful eviction, a plaintiff must show that (1) she had
      an unexpired rental contract with the landlord; (2) she occupied the premises;
      (3) the landlord evicted her; and (4) she suffered damages attributable to the
      eviction.” Green v. Fed. Nat’l Mortgage Ass’n, No. 01-18-00258-CV, 2019 WL
      1716347, at *3 (Tex. App.—Houston [1st Dist.] Apr. 18, 2019, pet. filed) (mem.
      op.); see Hill v. Wells Asset Mgmt., Inc., No. 05-15-00096-CV, 2016 WL
      4039256, at *2 (Tex. App.—Dallas July 26, 2016, no pet.) (mem. op.); Mckenzie
      v. Carte, 385 S.W.2d 520, 528 (Tex. Civ. App.––Corpus Christi 1964, writ ref’d
      n.r.e.).
                                          17
premises liability,10 failure to refund the security deposit,11 willful disclosure of

incorrect ownership information,12 and retaliation.13 Because Permison did not

raise a genuine question of material fact as to whether Ward was Permison’s

landlord or the owner of the house, we hold that the trial court properly granted

summary judgment as to constructive eviction and interference with property

rights, wrongful eviction, premises liability, failure to refund the security deposit,

willful disclosure of incorrect ownership information, and retaliation.

      “The elements of common law fraud are: (1) a material representation that

was false when made; (2) when the representation was made, the speaker knew it




10
      When an invitee sues a premises owner, he must prove: (1) the property owner had
      actual or constructive knowledge of the condition causing the injury; (2) the
      condition posed an unreasonable risk of harm; (3) the property owner failed to
      take reasonable care to reduce or eliminate the risk; and (4) the property owner’s
      failure to use reasonable care to reduce or eliminate the risk was the proximate
      cause of his injuries. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014);
      Kyles v. S. Loop 2626, LLC, No. 01-17-00355-CV, 2018 WL 3581014, at *3 (Tex.
      App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.).
11
       “A landlord who in bad faith retains a security deposit in violation of this
      subchapter is liable for an amount equal to the sum of $100, three times the
      portion of the deposit wrongfully withheld, and the tenant’s reasonable attorney’s
      fees in a suit to recover the deposit.” TEX. PROP. CODE § 92.109(a).
12
      “A landlord acts in bad faith and is liable according to this subchapter if the
      landlord gives” incorrect information about the property’s ownership or
      management as required by the Property Code. TEX. PROP. CODE §§ 92.204,
      92.205(a).
13
      The Property Code prohibits a landlord from taking certain actions because a
      tenant has exercised certain legal rights. See TEX. PROP. CODE § 92.331.
                                          18
was false or made it recklessly as a positive assertion without any knowledge of its

truth; (3) the speaker made the representation with the intent that the other party

should act upon it; (4) the party actually and justifiably relied on the

representation; and (5) thereby suffered injury.” DiBello v. Charlie Thomas Ford,

Ltd., 288 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing

Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).

Although no element of the cause of action requires a defendant to be a landlord,

Permison alleged that Ward committed fraud by filing for a wrongful eviction and

presenting “false information leading to a judgment” against him in the eviction

case. In his response to Ward’s motion for summary judgment as to common law

fraud, Permison argued that Ward had a duty to use ordinary care in maintaining

the premises and by warning of a defect because he was the landlord and an owner

of the property. He did not identify any evidence that supported his argument or

that showed he took any action in reliance on a representation made by Ward.

Because Permison failed to come forward with evidence of common law fraud, the

trial court did not err by granting summary judgment on that claim.

B.    Ward’s second no evidence motion for summary judgment

      In his second no evidence motion for summary judgment, Ward argued that

there was no evidence to support Permison’s conspiracy claim. The Texas

Supreme Court has defined the elements of civil conspiracy as: “(1) two or more


                                        19
persons; (2) an object to be accomplished; (3) a meeting of minds on the object or

course of action; (4) one or more unlawful, overt acts; and (5) damages as the

proximate result.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136,

141 (Tex. 2019) (quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.

1983)).

      Civil conspiracy is not an independent tort, but a derivative tort that depends

on participation in some underlying tort for which the plaintiff seeks to hold the

defendant liable. Agar Corp., 2019 WL 1495211, at *4; Tilton v. Marshall, 925

S.W.2d 672, 681 (Tex. 1996); see Vertex Servs., LLC v. Oceanwide Houston, Inc.,

01-18-00125-CV, 2019 WL 3783115, at *10–11 (Tex. App.—Houston [1st Dist.]

Aug. 13, 2019, no pet.). Civil conspiracy therefore “survives or fails alongside” the

underlying tort. Agar Corp., 2019 WL 1495211, at *3.

      Permison alleged a civil conspiracy between Ward and Morris to wrongfully

evict him. Having concluded that Permison’s wrongful eviction claim did not

survive summary judgment, we further conclude that his civil conspiracy claim

likewise fails. Id. We hold that the trial court did not err by granting Ward’s second

motion for summary judgment.

      We overrule Permison’s first three issues.




                                         20
III.   Morris’s motions for directed verdict were properly granted.

       At trial, the court granted Morris’s motion for a directed verdict as to

Permison’s claims for: (a) constructive eviction; (b) premises liability and gross

negligence; (c) common law fraud; and (d) damage to credit. Permison abandoned

his claim for conspiracy.

       A trial court may order a directed verdict in favor of a defendant when: (1) a

plaintiff fails to present evidence raising a fact issue essential to the plaintiff’s right

of recovery; or (2) the plaintiff admits or the evidence conclusively establishes a

defense to the plaintiff’s cause of action. Prudential Ins. Co. of Am. v. Fin. Review

Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Internacional Realty, Inc. v. 2005 RP

W., Ltd., 449 S.W.3d 512, 548 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

When a trial court grants a directed verdict based on the evidence, we employ a

legal sufficiency standard of review on appeal. See City of Keller v. Wilson, 168

S.W.3d 802, 823 (Tex. 2005) (holding that standard of review for legal sufficiency

challenge applies to review of directed verdict); Austin Bridge & Rd., LP v. Suarez,

556 S.W.3d 363, 376 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). When a

trial court grants a directed verdict based on a question of law, we review that

ruling de novo. Id.




                                            21
      On appeal, Permison argues that the trial court erred by granting the motion

for directed verdict in favor of Morris. We look to the evidence introduced at trial

in considering this issue.

A.    Constructive eviction.

      The elements of a cause of action for constructive eviction are (1) an

intention on the part of the landlord that the tenant shall no longer enjoy the

premises, (2) a material act by the landlord that substantially interferes with the

tenant’s intended use and enjoyment of the premises, (3) an act that permanently

deprives the tenant of the use and enjoyment of the premises, and (4) abandonment

of the premises by the tenant within a reasonable time after the commission of the

act. Richardson v. SV Almeda I Ltd. P’ship, No. 01-11-01004-CV, 2013 WL

4680392, at *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem.

op.). The evidence at trial was that Morris placed many mothballs in common areas

of the house and outside the house to control pests, and the tenants then removed

the mothballs when she left. The evidence also showed that mothballs sublimate

from solid to gas, temporarily emitting a noxious smell. But there was no evidence

that the placement of the mothballs permanently deprived Permison of the use and

enjoyment of the premises. Because there was no evidence of at least one element




                                        22
of constructive eviction, we hold that the trial court did not err by granting directed

verdict in favor of Morris on this claim.14

B.    Premises liability and gross negligence.

      “Premises liability is a special form of negligence where the duty owed to

the plaintiff depends upon the status of the plaintiff at the time the incident

occurred.” W. Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

Ordinarily, a landlord has no duty to tenants for dangerous conditions on the leased

premises. When landlord retains possession or control of a portion of the leased

premises, however, the landlord owes the tenant the same duty owed to an invitee.

See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015); Williams v.

Angelopoulous, No. 01-99-00060-CV, 2000 WL 1641127, at *2 (Tex. App.—

Houston [1st Dist.] Nov. 2, 2000, no pet.) (mem. op.). A “landowner’s duty” is to

“make safe or warn against any concealed, unreasonably dangerous conditions of

which the landowner is, or reasonably should be, aware but the invitee is not.”

Austin, 465 S.W.3d at 203.

      In this case, the dangerous condition that Permison alleged was Morris’s

excessive use of mothballs. This condition was not concealed; Permison and the




14
      In his third amended petition, Permison included a subheading entitled,
      “Interference with Plaintiff’s Property Rights and Constructive Eviction,” however
      the substance of the pleading was a cause of action for constructive eviction.
                                          23
other tenants were aware. We conclude, therefore, that the trial court did not err by

granting the motion for directed verdict as to premises liability.

      Permison also sought damages for gross negligence. He alleged that

Morris’s use of mothballs was gross negligence. Gross negligence means “an act or

omission involving subjective awareness of an extreme degree of risk, indicating

indifference to the rights, safety, or welfare of others.” City of Waco v. Kirwan,

298 S.W.3d 618, 623 (Tex. 2009) (quoting State v. Shumake, 199 S.W.3d 279, 287

(Tex. 2006)). At trial Morris testified that she was not aware of the health risks of

using mothballs, she had never read the package, and she had previously used

mothballs for pest control, even near her asthmatic child. There was no evidence in

the record that Morris was subjectively aware of an extreme risk arising from the

use—or overuse—of mothballs. We conclude the trial court did not err by granting

a directed verdict in favor of Morris on gross negligence.

C.    Common law fraud

      “The elements of common law fraud are: (1) a material representation that

was false when made; (2) when the representation was made, the speaker knew it

was false or made it recklessly as a positive assertion without any knowledge of its

truth; (3) the speaker made the representation with the intent that the other party

should act upon it; (4) the party actually and justifiably relied on the

representation; and (5) thereby suffered injury.” DiBello, 288 S.W.3d at 122.


                                          24
      Permison asserts that Morris made two actionable misrepresentations:

(1) inconsistent representations about who owned and managed the house and

(2) the representation that the house would be “drama free.” As to both, there was

no proof introduced at trial that Permison suffered any injury as a result of the

inconsistent statements about who owned the house or as a result of “drama.” The

evidence showed that Permison suffered injury from the inhalation of vapors

sublimated from mothballs and then decided to leave the house. Because there was

no evidence that Permison was injured by his reliance on the alleged

misrepresentations, we conclude that the court did not err by granting a directed

verdict on common law fraud.

D.    Damage to credit.

      Permison alleged that the fact of the judicial eviction damaged his credit.

Damage to credit is an element of contract damages and not an independent tort in

Texas. See Gabriel, 2013 WL 865577, at *4 n.8. The trial court granted a directed

verdict on Permison’s damage to credit claim, but it submitted his cause of action

for breach of contract. The trial court found in favor of Morris on the breach of

contract claim. Thus, any possible error from the grant of the motion for directed

verdict was harmless.




                                       25
                                       ***

      Having considered each of the claims as to which the court granted a

directed verdict, we overrule Permison’s fourth issue.

                                    Conclusion


            We affirm the judgment of the trial court.




                                              Peter Kelly
                                              Justice


Panel consists of Justices Kelly, Hightower, and Countiss.




                                         26
