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 
2

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, 
3

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.
4

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.”
5

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.” 
6

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.” 
7

(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 
8

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.
9

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) 
10

(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 
11

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. 
12

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
13

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. 
14

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 
15

(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.
16

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
17

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.).
18

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. 
19

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 
20

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. 
21

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. 
22

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 
23

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. 
24

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.
25

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.
26

* * *

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.