Opinion issued October 2 9 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 18 - 00392 - CV

——————————— JACK PERMISON , Appella nts

V. CARRIE MORRIS & DAVE WARD , Appell e e s
On Appeal from the 400th District Court Fort Bend Cou n t y, Texas Trial Court Ca se No. 15 - DCV - 225441

MEMORANDUM OPINION Jack Permison rented a room in a house in Fort Bend County fr om appellee Carrie Morris

. Although h e left before his lease ended, he was later judicially evic t ed. He co nt ends that he was force d to leave the house by the actions of the appellees : Carrie Morri s and her boyfriend, Dave Ward

. Permison sued them both2

for : (1) breach of contract; (2) negligence; (3) interference with property rights and constructive eviction; ( 4) premises liability a nd gross negligence ; (5) failure to refund security deposit; (6) wrongful eviction ; (7) common law fra ud ; (8) willful disclosure of incorrect ownership information; (9) damage to credi t; (10) retaliation; (11 ) exemplary damages; a nd (12) conspiracy. The c ourt granted Ward’s no

- evidence motions for summary judgment and dismissed with prejudice a ll the claims against him, except for negligence, which was not submit ted to the jury at tri a l. In his first three issues on appeal, Permison

c hallenges the trial co urt’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 pro perty rights and
const r uctive eviction; (2) premises liability a nd 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 Morri s advertised for rent a furnished pri v ate bed room and private bathroom “in para dise***free of drama.” Morris described the house as “beautiful” and “resort

- style,” and she advised anyone who is a “ a n ut case, drama queen,3

weirdo, slob, or psych o ” to stay away, stating that she w a nted a “ peaceful relaxing calm beauti ful place to come home to after a long day at work. ” 1 Permison , a heli copter pi lot, responded to Morris ’ s adver tisement

. Permis on and Morris discussed their s hared interest in h elicopters , and Morris told Permison that her boyfr iend, Dave Ward , also was a pilot

. Permison a greed 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. A fter Permison moved in, he be cam e friendly with Morris a n d War d

. 2 Several days after h e moved in , Permison informed Morris that he had found mice in the house. A ccording to Permison, a round the same time, Morris made a sexual advance toward him, which he re buffed. Morris denied th is entirely. The friendly text
message s between the m stopped a fe w days later. 3

1 The appellat e record i n this case includes transcripts of phone calls involving Permison and either Ward or Morris a s well as a copy of t he text message s e xchanged betw een Permis on 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 proper ly a uthenticated and are hea r say.
2 M o rris invit ed Permison to go fishing with her children, and Permison invited Morris to take helicopter rides. Ward loan ed Permison a car to save him the expense of renting one, saying , “ in aviation you are supposed to take care of each other. ” Permison hel ped Morris wi th a computer problem. When Permison found a kitten, Morris help ed name it and kept it overnight.

3 Morris and Permison communicated by text message and phone call because during the time Permison stayed in Morri s ’ s house, Morris was tempor arily 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 ini tially agreed, but when he saw the quantity o f belongings t hat had been left outside the house , he refused to move them into his room. M orris later testified that she knew the proper ty would fit because she had previously stored it in the s econd closet in Permison ’ s room and under the bed. T he next day, Morris ask ed Permison if he had put the property into the closet , saying she did “ not want it left outside. ” Permison told he r there was not

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

sen t several acrimon ious text messages, told Permison to leave h er house , and said she was evicting him. After additional , hea ted text message s , Morris told Permi s on
to sue W a rd , saying , “ D a ve ’ s the own er of my house. Sue him. He holds the title. He gets the m oney. ” Permison told her , “ Dave isn ’ t th e landlord. You are. My agreement is with you. ” Morris made some vulgar personal rema r ks , and she bl a med Permison for her current discord wi th W a rd

. Permison told Mor ris that he would le ave if she refunded h is money and paid for a week ’ s stay at a hotel

. Permison called Ward , and he expla ined that the property would not fit in his r o om and that the living situation was no t working out. He conce ded that he

4 Ward described th e property as “a bunch of blankets and pillows and a little single mattre ss p robably four or f ive of them. ”5

had to work out the problem with Morris, because “ my agreement is with her, she is the owner of the ho use not you
. ” Permison also suggested that Morris was upse t about something other than the propert y storage. Ward maint ained that he was a

“ third p arty ” the room rental agreement , and he agreed that if the living situation was not working out, Permison sho uld move out. Several hours after the telephone conversati o n and text thread, Morris went
to the h ouse 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 toxicit y . Permison ma de a video recording of Brewster yelling prof anities and demands at Morris, who attempted to placate him. At the end of the video , another man is heard la ughing, but Permison denied that he had laugh ed

. After Morris left, Permison and the othe r tenants discarded most of the mothballs

. Permison slept in the rented room that night, and the next morning, he sought treatment a t an emergency room for difficulty breathing , vo mi t ing, and heada c he. He was diagnosed with “aching headache” and “exposure to chemical inhalation.” 5 Permison never r eturned to the house

.

5 A nursing note in Per mison’s medical recor d st ated: “ Spoke with Po i son Control, patient to s tay away from mothballs and get house cleaned up. Bobby, P oison C ont rol, states that nause a, vomiting, diarrhea and headache are onl y symptoms of mild exposure and will resolved upon s taying away from them .”6

At some point, Permison told Ward that Morris tried to kiss him , bu t he rebuffed her advances

. While he was in the emergency room, Per mison spoke to Ward, advising him that he would “ be better off ” if he were to “ g et rid of her. ” A few days later , W a rd and Morris reconciled. Ward then told Permison that he owned the house in which Permison had rented a room and that his na me was on the d eed

. 6 W a rd also informed Permison that he had i nstituted eviction proceedings again st him. Morris later testified that Ward was attempting to protect her from harsh treatment by Perm ison and Br ewster. Four days after Permi s o n left the house , Morris filed a complaint for eviction. War d ’ s name was ini tially listed as a land lord on the handwritten form, but it was crossed out and ini tialed “ CM. ” The jus tice of the peace court rendered judgment in favor of Morris. Permison appealed to the County Court at Law N o. 3, but he later nonsuited his appeal

. Permison later sued both Morris and Ward fo r (1) breach of contract; (2) interfer ence with property right s and constructive eviction; ( 3 ) pr e m ises liability and gross negligence ; ( 4 ) failure to refund s ecurity depo sit; ( 5 ) wrongful eviction; ( 6 ) common law fraud; ( 7 ) willful disclosure of incorrect ownership inf ormation; ( 8 ) damage to credit; ( 9 ) retaliation; (1 0 ) exemp l a ry damages; and

6 Permison replied, “That’s interesting becau se it doesn’t come up that way on th e

— okay, well that creates a dilemma for me. Bu t you are not back together with Carrie at all?” Ward replied, “Well, she’s still at the house . That’s all irreleva nt.”7

(1 1 ) conspiracy. Permison ’ s claims were based on his a llegations tha t both Morri s and Ward were the landlords and acted together , that Morris told him to leave when he ref

used to store her property, and that Morris “ placed a deadl y amount of moth balls ” on the pr emises. Permison, Morris, Bre wster, and another former tenant, Brenda Jone s, testified at trial. Permison testified that he rented a room from Morris, rebu ffed her sexual advances, and refused to store her b elongings in his room because they would not fit. He also testified that Morris used an excess of mothballs tha t caused him to suffe r an inhalation injury , even though the mothballs were pr omptly gathered and discarded. Brewster and Jones corroborated Morris ’ s use of mothballs. Morris denied having made sexual advances on Permison

. S he testified that she used the m othballs as pest control and , having grown up in the cou nt ry,

s h e described this use as commonplace. She sa id 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 evic tion; (2) premises liability and gros s negl i genc e; (3) common law fraud; and (4) damage to credit. The jury found in favor of Permison on his retaliation claim, and i t awarded damages of $1,269.03

. The trial court rendered8

judg ment on the verdict in favor of Permison for $1 ,269.03 f or retaliation and $5,000 in attorney ’ s fees. Analysis On appeal, Permison challenges the pret rial summary judgments in favor of W a rd and the dir ected verdict s in favor o f Morris. 7 I. Summary judgment standard s o f review

“ A no

- evidence summary judg ment is e ssentially 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 ver dict. ” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750

– 51 (Tex. 2003) . “Af ter an ad equate time for discovery,” a party may see k summary judg ment “on the ground that there is no evidence of one or more essential elements of a claim or defense o n which an

a dverse party would have the burden o f proof at trial.” T EX
. R. C IV
. P. 166a (i). A

no - evidence summary judgment motion “must sta t e the element s as to which there is no evidence.” Id. The burden then shifts to the nonmovant to “produce[]
summary judgment evi dence raising a genuine issue of mat erial fact.” Id. Once the movant specif

ies the e lements on which there is no evidence, the b urden shifts to

7 The jury found that Permison and Morris had an agr eement for th e lease of a room for $700 per month, but it found that Morri s did n ot breach the agreement. The jury found that Morr is retaliated against Per mison, and it assesse d damages of $1269.03 and attorneys’ fees of $5,000. The jury also found that Mo rr is did not fail to return Permison’s securit y depos it in bad faith. No issue rega rding Permison ’ s claims agains t Ward was submitted t o the jury.9

the nonmovant to raise a fact issue on the challenged elements. Id. If the nonmovant fails to produc e evidence t hat raises a genuine issue of materi al fact, the trial court must grant the motion i n favor of the movant. A no

- evidence

summar y judgment wil l be sustained on appeal “ when ( a ) there is a complete absence of evidence of a vital fact, ( b ) the cou rt is barred by rules of law or of evidence from giving weight to the only evidence off ered by t he nonmovant to prove a vital fact, ( c ) the evidence offe red to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishe s the opposi te of the vital fact.” King Ranch , 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havne r , 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error , 38 T EX
. L. R EV
. 361, 362

– 63 (1960) )). “Summ ary judgment evidence may be filed late, but onl y with leave of court.” Benchmark Bank v. C r owder , 919 S.W.2d 657, 663 (Tex. 1996). “Except on leave of court,” the nonmovan t ’ s summary judgment evidence must be filed and served at least sev en days befo re th e summary judgment hearing. T EX
. R. C IV
. P. 166a (c). “[T]he court has discretion to accept l ate

- 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.

— Housto n [14th Dist .] Oc t. 5, 2006, pet. denied)10

(mem. op.) (court did n ot abuse its discretion by refusing to cons i der evidence attached to motion for reconsideration). “A trial court may accept summary judgment evidence filed late, even after summary judgment, as long as t he co urt affirmatively indicates in the record that i t accepted or considered the evidence.” Mat h is v. RKL Design/Build , 189 S.W.3d 839, 842

– 43 (Tex. App.

— Houston [1st Dist.] 20 06, no pet.) (citing Stephens v. Dolcefino , 126 S.W.3d 120, 133

– 34 (Tex. App.

— H ousto n [1st Dist.] 2003, pet. denied). “Leave to late

- file summary

- judgment evidence may be refl e cted in a separate order, a recital in the summary judgment, or an oral ruling c ontained in the reporter ’ s record.” Lesikar v. Moon , No. 14

- 16

- 0029 9

- CV, 2017 W L 493 0851, at *11 (Tex. App.

— Houston [14th Dist.] Oct . 31, 2017, no pet.) (mem. op.)

. In his bri e f, Ward contends that the trial court should have disregarded the evidence filed in response to the firs t no evidence motion for summary judg ment, because it w as f

i led four hou rs late

. See T EX
. R. C IV
. P. 166a(c). Permison ’ s response included a motio n for leave to file a late response, which explained that his attorney experienced “ t echnical difficulties ” with electronic filing due to the size of the file . He as ked that he be permitted to file his response four hours late. I n its order granti n g the fir st summary judgment motion in favor of Ward, the trial court stated that it had considered the response. We reject Ward ’ s contentio n that we must ignor e Pe rmison ’ s summary judg ment evidence and11

conclude that it was considered b y the trial court. S ee 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 judgm ent evidence may consist of affidavits, the opposing party ’ s discovery responses, pleadings, ad m issions, stipulations, and authenticated or certified public records. See T EX
. R. C IV
. P. 166 a(c). “ A summary judgment may be based on uncontroverted testi monia l eviden ce o f an interested wit ness, or of an expert w itness as to subject matter concerning which t he t rier of fact must be guided solely by the opinion test imon y of experts, if the evidence is clear, positiv e and direct, otherwise credible and free from contradi ctio ns and inconsistencies, and

cou ld have been readily controverte d. ” Id. “ Sworn or certified copies of all papers

or parts ther eof referred to in an affidavit shall be attached thereto or served therewith. ” T EX
. R. C IV
. P. 166a (f). “ Copies of doc uments attac hed to a properly prepared affidavit indicating the copies are ‘tr u e and correct’ are sworn copies.” Coas tal Cement Sand Inc. v. First Interstate Credit All., Inc. , 956 S.W.2d 562, 567 (Tex. App.

— Houston [14th Dist.] 1997, pet. den ied) . But a s tatement tha t a n

u nsworn document at tached to an affidavit is a “ true and corr e ct copy ” is not an affirmative indication that the fact s c ontained in the unsworn do cument are themselves t rue and correct. See id.12

Unsworn witness statements are not competent summary jud gme nt evidence. See Kolb v. Scarbrough , No. 01

- 14

- 00671

- CV, 2015 W L 1408780, at *4 (Tex. App.

— Houston [1st Dist.] Mar. 26, 20 15, no pet.) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal P ractice , 46 H ous. L. Rev. 1379, 1470 (2010) ( evidence su ch as “ unsworn witness statements,

e xpert ’ s reports, or unauthenticated documents ” are not “ pr oper 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 ca nnot create a genuine question of mater ial fact , and therefore it will not defeat a motion for summary judgment

. See Elizondo v. Krist , 415 S.W.3d 259, 264 (Tex. 2013) ( co nclusory state ments ) ; HighMoun t Expl. & Prod

. LLC v. Harrison Interests, Ltd. , 503 S.W.3d 557, 568 (Tex. App.

— Houst on [14th Dist.] 2016, no pet.) ; McKeehan v. McKeehan , 355 S.W.3d 282, 296 (Tex. App.

— Austin 2011, pet. denied)

. II. Ward’s n o - e vidence motions for summary judg ment were properly granted . P e rmison’s first three issue s challenge the trial court’s rulings di smissing his claims against Ward. He argues that the trial court er re d by granting Ward ’ s first and second motions for summar y judgment, and , in his third issue , he ar gues that W ard acted ei ther on his own or with Mo rris

— as co conspirator, co

- owner , or agen t

— to cau se his damages. Ward ’ s first n o evidence motion for summary13

j udg ment challenged the claims made in the second amended petition : breach of contract, negligence, constructi ve eviction, wrongfu l eviction, premises liability, failure to refund security deposit, common law fraud, damage to credit, and

e xe mplary dam ages . The trial court granted the motion and dismis sed the challenged claims and Permison ’ s conspiracy claim. When the error of dism issing the unchallenged cons piracy claim was raised, the t rial court signed a n amended

nun c pro tunc order cl arifying that the conspiracy claim had not bee n dismiss e d. Ward then challenged the conspir acy claim in his second no evidence mot ion for

summ ary j udgment

. A. Ward ’ s first no evidence motion for summary judgment In response to Ward ’s first no evid en ce motion for summary judgment , Perm ison provided his af fidavit, photographs of moth balls t hat had been cleaned up from the house, a tran sc ript of text message s e x changed between him and Morris , and transcripts of phone conversations he had with Morris a nd with W a rd

. In his affidavit, he averred that the transc ri pts of text messages and recorded phone calls were true and correct copies. But h e did no t av er that the statements in those docume nts were true and correct

. Permison ’ s claims against Ward depended on a fin ding t hat W a rd was his landl ord, the owner of t he ho use, or that he engaged in a c onspiracy with Morris.14

1. Permison p rov ided no evi dence that h e had a contract with Ward , that Morris was W a rd ’ s agent , or that he owned the house . To prevail on a cla im for breach of contract, the plaintiff must e stablish the following elements: (1) the exi stence of a valid contract; (2) performance or
t endered perf

orm ance by the pla intiff; (3) breach of the contract by the defendant; and (4) damages sustained by the p laintiff becau se of the breach. See USAA Tex. L loyds Co. v. Menchaca , 545 S.W.3d 479, 501 n .21 (Tex. 2018) ; S. Elec. Servs., Inc. v. City o

f Houston , 3 55 S.W.3d 319, 323

– 24 (Tex. App.

— Houston [1st Dist.] 2011, pet. denied). The elements of a valid contract are (1) an of fer; (2) an acceptance; (3) a mee ting of t he minds; (4) mutual consent to the terms; and, in the case of a written contract, (5) executio n a nd delivery of the contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I . Plastics, In c. , 97 S.W.3d 631, 636 (Tex. App.

— Houston [1st Dist.] 2002, pet. denied). “Mu tual assent, concerning material, essential term s, is a prer equ isite to format ion of a binding, enforceable contract.” Potcinske v. McDonald Prop. Invs., Ltd. , 245 S .W.3d 526, 530 (Tex. App.

— Houston [1st Dist.] 2 007, no p et.) (citing T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d 218, 221 (Tex. 19 92)).

“ The n ece ssary elements of written and oral contracts are the same and must be present for a contract to be bin ding. ” Peine v . Elite Airfreight, Inc. , No. 01

- 14

- 0 0860

- CV, 2016 WL 4253836, at *3 (Tex. App.

— H ouston [1st Dist.] Aug. 11, 2016, no pet.) ( mem. op.) ; s ee Wal

– Mart Stores , Inc. v. Lopez , 93 S.W.3d 548, 55515

(Tex. App.

– Houston [14th Dist.] 2002, no pet.). “ In determining th e existence of

an oral contract, courts look to the comm unications between the parties and to the acts and circumstances sur rounding tho se communications. ” Peine , 2016 WL 4253836, at *3

. In his motion for su mmary jud gment, Ward argued that there was n o evidence of breach of contract, because there was no evidence that he and Pe rmison ever entered into an agreement and because h e was not th e record owner of the ho use. In response, Permison relied on t ext messa ges from Morris sent approximately two weeks after he moved into the house in which she stated tha t Ward owned th e house , transcribe d phone calls he had with Ward, a nd a pos ted notice t o vaca te that identified Ward as a landlord. Permison also ass e rted 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 post ed notice do not show that W a rd owned the ho use or entered into an agreement with Permison. T he se a ttach ments to Permison ’ s affidavit are essentially unsworn statement s of a witness , and therefore
not competent summary judgment evidence

. See Kolb , 2015 WL 1408780, at *4

. They are i nsuff

icient to cr eate a genuine question of mater ial fact regarding whe ther Ward owned the house or had an a gree ment with Permison. See Coas tal Cement Sand , 956 S.W.2d at 567

.16

Permison argues that the statements made by Ward were judicial admissions

. We di sagree. Judi cial admissions must be made in the course of a judicial proceeding, and the con versations and t e xt message exchanges that Permi son relies on were not made in the course of a judicial proceeding. See Cohen v. Tour Partners, Ltd. , No. 01

- 15

- 0070 5

- CV, 2017 W L 152 8776, at *5 (Tex. App.

— Houston [1st Dist.] Apr. 27 , 2017, no pet.) (mem. op.) ; H2O Sols., L t d. v. PM Realty G rp., LP , 438 S.W.3d 606, 617 (Tex. App.

— Houston [1st Dist.] 2014, pet. denied). None of Permi son ’ s proffered summary judgment e vi dence suppor ts an inference of any offer made by Ward or acceptance by Permison , nor does it demonstrate a m eetin g of the minds or mutual assent to the terms of a contract except between Permison and Morris

. See Prime Pr ods. , 97 S.W.3d at 636. Permison ar gue s that Mo rris was acting as Ward’s agent. But an “ agent ’ s authority to act on behalf of a principal depen ds on some communicati on by the principal eit her to the agent (actual or express authority) or to the third part y (apparent or implied authority). ” Gai nes v. Ke lly , 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 Pe rmi son that Morri s was acting as his agent. We conclude that the trial court properly granted summary17

jud gme nt a s to breach of con tract
. D a mage to credit is not an independent tort in Texas, rather it is an element of breach of contract damages

. See Gabrie l v. Associa te d Credit Union of Texas , No. 14

- 12

- 00349

- CV, 2013 WL 865577, at *4 n.8 (Tex. App.

— Houston [14th D ist.] Mar. 7, 2013, pe t. denied) (mem. op.) (citing Mead v. Johnson Grp. In c. , 615 S.W.3d 685, 688 (Tex. 1981) ). Accordingly, the trial court did not err by dismissi ng Permison ’ s claim for damage to credit. 2. Permison ’ s other claims fail because they all dep end on finding s that W ard was the landlord and owner of the ho use. Several of Permison ’s other claims also fail because there is no evidence that Ward was Pe rmison ’s landlord or the owner of the house

. These include constructive eviction and interference w ith property rights , 8 wrongful eviction, 9

8 Constructive evi ction requires conduct by the landlord that “materially interferes with the tenant’s benef

ici al use of the premises.” Richardson v. SV Almeda I Ltd. P’ship , No. 01

- 11

- 01004

- CV, 2013 WL 4680392, at *7 (Tex. App.

— H ouston [1 st Dist.] Aug. 29, 2013, no pet.) ( mem. op.) (stating elements of cause of action for constructive eviction); see Pinter v. A saf i 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 caus e of action for tor tious interferen ce with the peaceful use and enjoyment of property is a claim for intentional interference wi th propert y rights.”).

9 “To establish a claim for wrongful eviction, a plaintiff must show that (1) she had an unexp ired rent al contract with the landlord; (2) she occupied the premises; (3) the landlord evicted her; and (4) she suffered damages attr ibu table to t he eviction.” Green v. Fed. Nat’l Mortgage Ass’n , No. 01

- 18

- 00258

- CV, 2019 WL 1716347, at *3 (Tex. App.

— Houst on [1st D ist.] Apr. 18, 2019, pet. filed ) (m em. op.); see Hill v. Wells Asset Mgmt., Inc. , No. 05

- 15

- 00096

- CV, 2016 WL 4039256, at *2 (Te x. App.

— Da llas July 26, 2016, no pet.) (mem. op.); Mckenzie v. Carte , 385 S.W.2d 520, 528 (Tex. Civ. App.

–– Corpus Chris ti 1964, writ ref ’ d n.r.e.).18

premises liability, 10 failure to refund the security deposit , 11 willful disclosure of incorrect ownership info rmation , 12 and r etaliation. 13 B ecause Permison did not raise a genuine question of material fact as to wheth er Ward was Permison ’s land lord or the owner of the house , w e hold that the trial court proper ly grante d summary judgment as to constructive evic tion and int er fe rence with property rights , wrongful eviction, premi ses liabili ty, failure to refund t he se curity deposit , willfu l disclosure of incorrect owne rship in formation, and retaliation

.

“ The e lements of common law fraud are: (1) a material represe ntation that

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

10 When an inv itee sues a premises owner, he must prove: (1) the property owner had actual or c onstructi ve knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property o wner fail ed to take reasonable care to reduc e or eliminate the risk; and (4) the property owner’s failure to use reasonable c are to re duc e or elimi nate 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 l andlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount e qual to t he sum of $100, three times the por tion of the deposit wrongfully withheld, and t he tenant ’ s reasonable attorney’s fees in a sui t to recov er the deposit. ” T EX
. P ROP
. C ODE § 92.109 (a)

. 12 “ A landlord acts in bad faith and is liable according to th is subcha pter if the landlord gives ” incorre ct in f ormation about the property ’s ownership or manag ement as required by the Property Co de. T EX
. P ROP
. C ODE § § 92.204 , 92.205(a).

13 The Property Code prohibits a landlord from taking certain actions because a tenant h as exercised certain legal rights. See T EX
. P ROP
. C ODE § 92.331

.19

wa s false or ma de it recklessly as a positive assertion witho ut any knowledge of its truth; (3) the speaker m ade the representation with the intent that the other p arty should act upon it; (4) the party actually and justifiably relied on the representation; and (5) there by suffered injury. ” D iBello 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. 20 01) )

. Although no element of the cause of action requires a defe ndant t o be a land lord, Permison alleged that Ward committed frau d by filing for a wrongful eviction a nd
pres enting “ false informatio n leading to a ju d gment ” against him in the eviction

case. In his response to Ward ’ s motion for sum mary judgment as to co mmon law fraud, Permison argued that Ward had a duty to use ordinary care in maintaining the premises and by warning of a defect becaus e he was the landlord an d an owner of the p roperty. He did not identify any evidence tha t supported his argument or that showed he took any action in reliance on a repres entation made by Ward. Because Permison failed to come forward with evidence of common law fra ud, t he trial court did not err by granting summary judgment on that claim. B. Ward ’ s second no evidence moti on for summary judgment In his second no evidence motion for summary judgment, Ward argued that there was no evidence to support Permison ’s c onspirac y cl aim. The Texas Supreme Court has defined the elements of civil conspiracy as: “(1) two or more20

persons; (2) a n o bject to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) da mages 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 deriva tive tort that d epends
on pa rticipation in some underlying tort for which the plaintiff see ks to hold the defenda nt liable. Agar C orp. , 2019 WL 14 95211, at *4 ; Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) ; see Vertex Serv s . , LLC v. Oceanwide Houston , Inc. , 01

- 18

- 00 125

- CV, 2019 WL 3783115, at *10

– 11 (Tex. App.

— Houston [1st Dist.] Aug. 13, 2019, no pet. ) . C iv il conspiracy therefore “survives or fails alongside” the underlying tort

. Agar C orp. , 2019 WL 1495211, at *3. Permison alleged a civil conspi ra cy between Ward a nd Morris to wrongfully evict him. Having conclud ed that Permison ’s wron gful eviction claim di d not survive summary judgment, we further conclude that his civil co nspiracy claim likewise fails. Id. We hold that the trial court did no t err by granting Ward ’ s second
mot ion for summary judgment. We overrule Perm ison ’s first three issues.21

III. Morris’ s motio n s for directed verdict w ere properly granted . A t trial, the court granted Morris’s motion for a directed verdict as to Permison’s claim s for: (a) c onstructive eviction; ( b) premises liability and gross negl igence; (c) common law fraud ; and (d) dam age to credit

. Permis on aba ndoned his clai m for conspiracy

. A trial c ourt may order a directed verdict in favor of a d efendant w hen: (1) a plaintiff fails to present evidence rai sing a fact issue esse ntial to the plaintiff ’ s right of recovery; or (2) the plai ntiff admits or the evidence conclusively establ ishes 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 (T ex. 2000) ; Internacion al Realty, Inc. v. 2005 RP W., Ltd. , 449 S.W.3d 512, 548 (T ex. App.

— Houston [1 st Dist.] 2014, pet. d enied)

. When a trial court grants a directed verdict based on the ev idenc e, we employ a le g al suffici ency standar d of revi ew on appeal

. See City of Kelle r v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) (hold ing that standard of review for legal sufficiency challenge applies to review of d irected verdict) ; Austin Bridge & Rd., LP v. Suarez , 556 S.W.3d 363, 376 (Tex. App.

— Houston [ 1st Dist.] 2 018, pet. denied) . When a trial court grants a directed verdict based on a question of law, we re view that ruling de no vo. Id.22

On appeal, Per mi son argues that the trial court erred by granting the moti on 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 evic tion are (1) an intention on the part of th e landlord that the tenant shall no longer enjoy the premise s, (2) a mat erial act by the landlord that substantially interferes with the tenant’s intended use and enjoyment of the premises, (3) an act that permane ntly deprives the tenant of the use and enj oyment of the premises, and (4) abandonment of the premises by the tenan t 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.

— H ouston [1st Dist.] Aug. 29, 20 13, no pet.) ( mem. op.)

. The evidence at trial was that Morr is p laced ma ny mothballs in common areas of the house and outside t he 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 sm el l . But there was no eviden ce that the placem ent of the moth balls permanently deprived Permison of the use and enjoyment of the premi ses. Because there was no evidence of at leas t on e element23

of constructive eviction, w e hold that the trial court did not er r by gran tin g dir ected verdict in favor of Morris on this c laim. 14 B. P r emises liability and g ross negl igence.

“ Premises liability is a special form of negligence where the duty owed t o the plaintiff depends upon the status of the plaintiff at the time the in cident

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

. Or dinarily, a landlor d has no duty to tenants for dange rous conditions on the leased premises . When landlord retains possession or control of a po rtion of the leased premises , however, t he l and lord owes the ten ant the same duty owed to an invitee. See Austin v. Kroger T

e x., L.P. , 465 S.W. 3d 193, 202 (T e x. 2015) ; Williams v. Angelopoulous , No. 01

- 99

- 0006 0

- CV, 2000 WL 1641127, at *2 (Tex. App.

— Houston [1st Dist.] Nov. 2, 2000, n o pet.) (mem . op.). A “ landowne r ’ s duty ” is to

“ make safe or warn against any concealed, unreasonably dang erous conditions of which the landow ner is , or reasonabl y should be , a ware but the invitee is not. ” Austin , 465 S.W.3d at 203. In this case, the dang e rous condit ion that Permison alleged was Morri s ’ s excessive use of mothballs

. T his condition was not concealed ; Permison and the

14 In his third amended petition , Permison included a sub h e ading entitl ed,
“ Inter ference with Plaintiff ’ s Property Rights and Constructive Eviction , ” however the substance of the pleading w as a c ause of action for constructive eviction

.24

other tenants were aware. We conclude, therefore, t ha t the trial court did not err by granting the motion for directed verdict as to premi ses liab ility. Permison also sought damages for gross negligence. He alleged that Morris ’s use of mothballs was gross negligence. Gross negligence means “an act or omi ssion involving subjective awareness of an extreme degree of risk, indicat in g indifferen ce 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 , 19 9 S.W.3d 279 , 287 (Tex. 2006) ). At trial Morris testifie d that she was not aware of the health risks of using mothballs , s he had never read the package, and she had previously used mothballs for pest control , even ne ar her asthmatic child

. There wa s no evidence in the record that Morris was subjectively aware of an extreme risk arising from the

use

— or overuse

— of m othballs

. We conclude the trial cour t did not err by gr anting

a directed verdict in favor of Morr is on gross negligence. C. Common law frau d

“ The e lements of common law fraud are: (1) a material representation that was false when made; (2) when the represent ation was ma de, the speaker knew it

wa s false or ma de it recklessly as a positive assertion witho ut any knowledge of its truth; (3) the s peaker m ade the representation with the intent that the other party should act upon it; (4) the party actually and just ifiably reli ed on the representation; and (5) there by suffered injury. ” D iBello , 288 S.W.3d at 122

.25

Permison asserts that Morris made t w o actiona ble misrepresentations: (1) inconsistent representations about who owned and manage d the house and (2) the repr esentation t hat the house would be “ drama free. ” As to both , ther e was no proof int roduced at trial that Permi son suffered a ny injury as a result of the inconsistent statements about who owned the house or as a result of “ drama. ” The evidence showed that P ermison suff ere d i njury from the inhal ation of vapors sublimated from mothballs and then decided to leave the house. Because there was

no evidence that Permison was inju red by his reliance on the alleged mis representations, we conclude that the court did n ot err by gr an ting a directed verdict on common law fraud. D. D amage to credit . Permison alleged that the fact of the judicial eviction dama ged his credit. D a mage to credit is an element of contract damages and not an independent tort in T e xas. See Gabriel , 2013 WL 865 577, at *4 n.8

. The trial court granted a direct e d 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. T hus, any po ssible error from the grant of th e motion for directed verdict was harmless

.26 * * * Having considered each of the claims as to wh ich the court granted a directed verdict, we overrule Permison ’ s fourt h issue. Conclusion We affirm the j udgment of the trial co urt.

Peter Kelly Justice

Panel consists of Justices Kelly, Hight ower, and Countiss

.