Opinion issued August 3, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-20-00324-CV

———————————

CASSELSCO, INC., Appellant

V.

FOUZIA IKRAM ALVI, INDIVIDUALLY AND D/B/A SUPER KOOL KIDZ 

PRESCHOOL, Appellee

On Appeal from County Civil Court at Law No 3

Harris County, Texas

Trial Court Case No. 1141937-101

MEMORANDUM OPINION

Appellant, Casselsco, Inc. is the former commercial landlord of Fouzia Ikram 

Alvi, individually and d/b/a Super Kool Kidz Preschool (Alvi). Alvi sued Casselsco

for (1) breach of implied warranty of suitability, (2) violating Texas Property Code 

sections 93.005 and 93.011 by acting in bad faith in withholding her security deposit
2

and in failing to give her a written accounting to show why the security deposit was 

retained, and (3) violating provisions of the Texas Business and Commerce Code by 

filing assumed-name designations that belonged to Alvi. 

The trial court granted summary judgment in Alvi’s favor, implicitly 

determining that Alvi had, as summary-judgment movant, conclusively proven all 

elements of her causes of action. The summary judgment (1) rescinded the 

commercial lease agreement between the parties based on Alvi’s claim that 

Casselsco had breached its implied warranty of suitability, (2) awarded Alvi 

statutory damages and attorney’s fees based on her Property Code claims, and 

(3) ordered Casselsco to withdraw the assumed-name filings for violating the

Business and Commerce Code. In one issue with two sub-points, Casselsco contends 

that the trial court erred by granting summary judgment in Alvi’s favor on her claim 

of breach of implied warranty of suitability and on her Property Code claims. 

Casselsco does not challenge the portion of the summary judgment related to Alvi’s 

Business and Commerce Code claim.

We affirm in part, reverse in part, and remand for further proceedings.

Background

On April 15, 2019, Alvi, acting individually and doing business as Super Cool 

Kidz Preschool, signed a commercial lease agreement (the Lease) with Casselsco to 

rent a building to use as a daycare. When she signed the Lease, Alvi paid Casselsco 
3

a $9,000 security deposit. The Lease’s term was from April 22, 2019, until April 12, 

2024. The monthly rent was $3,000.

On May 1, 2019, Alvi took possession of the building and began to prepare it

for opening her daycare. Alvi detected the odor of mold and retained Dolphin 

Environmental Consultants to conduct a mold assessment, which Dolphin conducted

on May 22, 2019. Dolphin did a visual inspection of the premises, collected surface 

samples, and tested the moisture levels in the building. 

Dolphin produced a written report containing its findings of the mold 

assessment and its recommendations. In the report, Dolphin stated that “the affected 

area” was in the building’s five classrooms, which had “visible potential mold on 

the carpet and walls.” Dolphin stated in the report that it had been “informed [that] 

there was a previous roof leak that was allegedly repaired.” It had also been informed 

that “the HVAC system had been turned off for several days.” Dolphin noted that

the temperature and relative humidity levels [in the build] were elevated.” It

determined that “[t]he interior average Temperature readings in the SW Room and 

NE Room was 82° Fahrenheit and [was] not acceptable.” Dolphin also found that 

“the average Relative Humidity readings was 75% and [was] not acceptable.” It 

concluded that “both readings are not within good Indoor Air Quality ranges.”

Testing of the carpet in two of the classrooms indicated high levels of mold 

growth. Testing of one of the walls in a classroom indicated medium to high mold
4

levels. Dolphin made recommendations for abating the mold, which included 

replacing the carpeting and wainscoting in the classrooms and cleaning the 

building’s surfaces. Dolphin indicated that the work could be done by a general 

contractor.

On July 1, 2019, Alvi informed Casselsco that she was rescinding the Lease, 

and later testified in an affidavit that she surrendered the building back to Casselsco 

on that date. According to Alvi, Casselsco told her that it would release her from the 

Lease if she paid six-months rent or if she forfeited her security deposit. Alvi refused 

both options.

On July 26, 2019, Alvi had Dolphin perform a second mold assessment. The 

assessment included sampling the air inside the building. Dolphin’s report for the 

second assessment stated that probable mold was visible on the HVAC vents and 

filters. The report noted “highly elevated raw mold spore counts” of certain mold 

types in one of the classrooms. Testing detected two other mold types that should 

not be present in an interior air space. The report recommended that the building not 

be occupied by the daycare until the “airborne mold spores could be reduced to an 

acceptable level.”

On August 16, 2019, Alvi’s attorney, C. Cammack, sent a demand letter to 

Casselsco’s registered agent by certified and regular mail. In the letter, he stated that 

Alvi “had no choice but to surrender the leased premises back to Casselsco, Inc. on 
5

July 1, 2019 based on the significant presence of mold in the premises.” Cammack

also notified Casselsco that, “[b]y her surrendering the premises back to you on July 

1, 2019, my client [Alvi] deems the lease as rescinded.” Cammack demanded that 

Casselsco return Alvi’s security deposit to her by August 30, 2019. On August 24, 

2019, Cammack sent another letter to the registered agent, stating that the August 16 

letter had been returned to his office. Cammack enclosed the August 16 letter and 

sent the letter to Casselsco’s registered agent at three alternate addresses. 

Casselsco did not return Alvi’s security deposit. In October 2019, Alvi sued 

Casselsco. Her amended petition (the live pleading here) asserted claims against 

Casselsco for violating Property Code sections 93.005 and 93.011, alleging that 

Casselsco had acted in bad faith when it failed either to return her security deposit 

or to provide a written, itemized accounting of the security-deposit deductions within 

60 days after she surrendered possession of the premises. See TEX. PROP. CODE

§§ 93.005(a), 93.011. As statutorily permitted damages, Alvi sought to recover three 

times her $9,000 security deposit, plus $100, and her attorney’s fees. See id. 

§ 93.011(a) (“A landlord who in bad faith retains a security deposit in violation of 

this chapter 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 . . . .”).
6

Alvi also asserted a claim for breach of implied warranty of suitability. Based

on that claim, she sought recission of the Lease.

Alvi further claimed that Casselsco had violated Business and Commerce 

Code sections 71.153 and 71.201 by filing an assumed-name certificate for the 

names “Super Kool Kidz” and “Super Kool Kidz Preschool” with the Texas 

Secretary of State’s Office. See TEX. BUS. & COM. CODE §§ 71.153, 71.201. Alvi 

alleged that Casselsco had filed the names “in a bad faith, fraudulent effort to prevent 

[her] from using same [assumed business names] in Harris County, Texas.” Alvi 

asserted that the Business and Commerce Code required Casselsco to withdraw the

assumed-name filing.

Casselsco answered the suit and filed a counterclaim against Alvi. Casselsco 

asserted a breach-of-contract claim, alleging that Alvi had breached the terms of the 

Lease. It also requested a declaratory judgment, seeking a determination that Alvi 

had a duty to fulfill her obligations under the Lease, failed to do so, and had breached 

the Lease. Casselsco sought to recover “the rental amount for the entirety of the 

[L]ease agreement, damages and costs,” plus its attorney’s fees. 

Alvi moved for summary judgment. She asserted that she was entitled to 

summary judgment as a matter of law on her claims against Casselsco for violating

Property Code sections 93.005 and 93.011, for breaching its implied warranty of 

suitability, and for violating Business and Commerce Code sections 71.153 and 
7

71.201. In support of her motion, Alvi offered (1) her own affidavit, (2) the Lease, 

(3) Dolphin’s mold assessment reports, (4) Cammack’s demand letters to Casselsco, 

(5) Alvi’s assumed-name certificate, and (6) records from the Secretary of State. To 

support her requested attorney’s fees, Alvi offered Cammack’s affidavit testimony 

along with an itemized time sheet showing the specific tasks Cammack had 

performed, the amount of time he had spent on each task, and his hourly rate.

Casselsco responded to Alvi’s motion for summary judgment. Casselsco 

“voluntarily grant[ed] [Alvi’s] requested relief” with respect to her claim that 

Casselsco had violated Business and Commerce Code sections 71.153 and 71.201. 

Casselsco agreed to file “statements of abandonment” with the Secretary of State’s 

Office regarding Alvi’s assumed business names.

Casselsco otherwise contested Alvi’s motion for summary judgment. It

asserted that there was a genuine issue of material fact with respect to Alvi’s claim 

for breach of implied warranty of suitability. Casselsco relied on the affidavit of its

property manager, C. Schulze, to show that Alvi had verbally agreed to a disclaimer 

of the implied warranty of suitability. Casselsco also claimed that Schulze’s affidavit 

established that Alvi had waived the implied warranty by assuming “responsibility 

for routine maintenance, such as ensuring that climate control of the premises was 

being properly used.” Casselsco claimed that, because there was no breach of 

implied warranty, Alvi had no right to rescind the Lease. 
8

Casselsco further asserted that Alvi had failed to meet her summary-judgment 

burden regarding her claim that Casselsco had violated Property Code sections 

93.005 and 93.011 by neither returning her security deposit nor providing a written 

accounting to Alvi. Casselsco pointed to Schulze’s affidavit, asserting that Casselsco 

had provided Alvi a verbal accounting of why the security deposit was retained.

Alvi filed objections to portions of Schulze’s affidavit. Much of Schulze’s

affidavit pertained to conversations between her and Alvi, and Alvi raised hearsay 

(and other) objections to the affidavit.

The trial court conducted a hearing on Alvi’s motion for summary judgment. 

At the hearing, the trial court heard the parties’ arguments regarding Alvi’s motion 

and regarding Alvi’s objections to Schulze’s affidavit. In a signed order, the trial 

court granted all Alvi’s objections to Schulze’s affidavit. This included sustaining 

the objections to the portions of Schulze’s affidavit detailing the conservations 

between Alvi and Schulze, which Casselsco relied on to support its response.

The trial court signed an interlocutory order granting Alvi’s motion for 

summary judgment. Alvi then moved to sever her adjudicated claims against 

Casselsco from Casselsco’s still pending counterclaim against her. The trial court 

signed an order granting Alvi’s motion, severing her adjudicated claims against 

Casselsco into a new separate case and assigning it a new cause number. 
9

In the severed cause, the trial court also signed a “Final Judgment,” which 

granted the same relief as had been granted in the interlocutory summary-judgment 

order. In the judgment, the trial court stated that, “after considering [Alvi’s motion 

for summary judgment], examining the pleadings, affidavits and summary judgment 

evidence,” the trial had determined “that no genuine issue of material fact existed as 

to [Casselsco’s] liability or [Alvi’s] damages.” The court determined that Alvi was 

“entitled to a Summary Judgment on all of [her] claims as a matter of law, including 

[her] causes of action for breach of the implied warranty of suitability, violations of 

Sections 93.005 and 93.011, Texas Property Code, and violations of Sections 71.153 

and 71.201, Texas Business & Commerce Code.” The trial court stated that it had 

“severed such adjudicated claims from a breach of contract claim and Declaratory 

Judgments Act claim brought by [Casselsco]” against Alvi “resulting in” the creation 

of new cause number and a new case. 

In the judgment, the trial court “issued a mandatory injunction, commanding 

[Casselsco] to withdraw from the Texas Secretary of State’s records its assumed 

name designations of ‘Super Kool Kidz Preschool’ and ‘Super Kool Kidz.’” The 

trial court also ordered that the Lease was “rescinded, effective July 1, 2019, due to 

Casselsco, Inc.’s breach of the implied warranty of suitability.” On Alvi’s claim that 

Casselsco had violated Property Code sections 93.005 and 93.011 by failing to return 

her security deposit or to provide a written accounting of the deposit, the trial court 
10

awarded Alvi (1) $27,100 in statutory damages (that is, three times her $9,000 

security deposit, plus $100), (2) $4,500 in attorney’s fees for the trial court 

proceedings, and (3) a total of $15,000 in conditional appellate attorney’s fees. In its 

final paragraph, the judgment stated that it disposed “of all parties and all claims and 

[was] appealable.” Casselsco now appeals the summary judgment rendered in the 

severed cause.

1

1 Given this Court’s precedent regarding subject-matter jurisdiction over appeals 

from orders in severed cases when claims are still pending between the parties in 

the original cause, we are compelled to take judicial notice that the trial court has 

rendered a take-nothing final judgment in the original cause against Casselsco on 

its counterclaim against Alvi, which has disposed of all claims between Alvi and 

Casselsco. Cf. Blomstrom v. Altered Images Hair Studio, No. 01-19-00456-CV, 

2020 WL 6065437, at *1 (Tex. App.—Houston [1st Dist.] Oct. 15, 2020, no pet.) 

(mem. op.) (citing this Court’s precedent, panel majority held this Court lacked 

subject-matter jurisdiction over appeal from order granting summary judgment in 

appellee’s favor and severing appellee’s claims against appellant into new cause 

because order was not a final judgment, despite finality language in order, given 

that counterclaim by appellant against appellee remained pending in trial court 

under original cause number); id. (Kelly, J., concurring) (disagreeing that order was 

not final, appealable judgment because it contained finality language, but 

recognizing that “[w]e are constrained by the doctrine of horizontal stare decisis to 

follow . . . erroneous precedent”); see TEX. R. EVID. 201(b)(2) (“The court may 

“judicially notice a fact that is not subject to reasonable dispute because it: . . . can 

be accurately and readily determined from sources whose accuracy cannot 

reasonably be questioned.”), 201(c)(1) (providing court “may take judicial notice 

on its own”); Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 24 (Tex. 

2012) (citing Rule 201 and taking judicial notice of relevant facts outside record to 

determine jurisdiction). Casselsco also informs us, in the “Statement of the Case” 

section of its brief, that the trial court granted summary judgment in Alvi’s favor on 

Casselsco’s counterclaim in the original cause, thus disposing of all claims between 

the parties.
11

Summary Judgment

In one issue with two sub-points, Casselsco contends that the trial court erred 

by granting summary judgment in Alvi’s favor on her claim for breach of implied 

warranty of suitability and on her claim for violating Property Code sections 93.005 

and 93.011. 

A. Standard of Review

We review de novo the trial court’s ruling on a motion for summary judgment. 

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 

2009). In conducting our review, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the 

non-movant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005). A party moving for traditional summary judgment has the burden to prove 

that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 

641 (Tex. 2015). 

When, as here, the plaintiff moves for summary judgment, she must 

conclusively prove all elements of her cause of action as a matter of law. See Rhône–

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); FP Stores, Inc. v. 

Tramontina US, Inc., 513 S.W.3d 684, 690 (Tex. App.—Houston [1st Dist.] 2016, 

pet. denied). A matter is conclusively established if reasonable minds could not 
12

differ about the conclusion to be drawn from the evidence. See City of Keller v. 

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

If a movant meets her burden of establishing each element of the claim on 

which she seeks summary judgment, the burden then shifts to the nonmovant to 

disprove or raise a genuine issue of material fact as to at least one of those elements. 

See Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 

(Tex. 2014). Evidence raises a genuine issue of fact if reasonable jurors could differ 

in their conclusions considering all the summary-judgment evidence. Goodyear Tire 

& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

B. Property Code Claims

In its first sub-point, Casselsco challenges the summary judgment on Alvi’s 

claims under Property Code sections 93.005 and 93.011. Casselsco focuses its

challenge to a single element of those claims. Specifically, Casselsco asserts that 

Alvi failed to conclusively prove that she “surrendered” possession of the premises.

Property Code section 93.005 provides: “The landlord shall refund the 

security deposit to the tenant not later than the 60th day after the date the tenant 

surrenders the premises and provides notice to the landlord or the landlord’s agent 

of the tenant’s forwarding address . . . .” TEX. PROP. CODE § 93.005(a) (emphasis 

added). Section 93.011 provides a commercial tenant two distinct causes of action 

when a tenant seeks the return of its security deposit. Id. § 93.011; Zhang v. Cap. 
13

Plastic & Bags, Inc., 587 S.W.3d 82, 93 (Tex. App.—Houston [14th Dist.] 2019, 

pet. denied). The first cause of action arises from the landlord’s bad faith retention 

of the security deposit. Id. § 93.011(a). The second arises from the landlord’s bad 

faith failure to account for the security deposit. Id. § 93.011(b). Here, Alvi alleged 

both. 

If the tenant shows that the landlord failed to refund the security deposit or 

provide a written accounting within 60 days after the tenant surrenders possession 

of the premises, then it is presumed that the landlord acted in bad faith. Id. 

§ 93.011(d). The burden then shifts to the landlord to rebut the presumption FP 

Stores, Inc., 513 S.W.3d at 693. If the landlord fails to offer rebutting evidence, its 

bad faith is established as a matter of law. Id. 

In its brief, Casselsco challenges the summary judgment on Alvi’s Property 

Code claims by contending that Alvi failed to conclusively prove that she 

“surrendered” possession of the premises. Casselsco asserts that the summaryjudgment evidence raised fact issues on this point. Because Casselsco limits its 

challenge to this ground, we likewise limit our analysis to determining whether the 

trial court could have properly found that the summary-judgment evidence 

conclusively showed that Alvi surrendered the premises. Cf. Wells Fargo Bank, N.A. 

v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (“A court of appeals commits 
14

reversible error when it sua sponte raises grounds to reverse a summary judgment 

that were not briefed or argued in the appeal.”). 

“Surrender is defined as giving up the tenancy to the landlord so that the 

tenancy and the rights or interests of the parties thereunder are extinguished by 

mutual agreement.” Jordan v. Schwing, No. 01-03-00008-CV, 2004 WL 1351409, 

at *3 (Tex. App.—Houston [1st Dist.] June 17, 2004, no pet.) (mem. op.) (citing 

Four Bros. Boat Works, Inc. v. S & SF, Inc., 55 S.W.3d 12, 16 (Tex. App.—Houston 

[1st Dist.] 2001, no pet.)). Here, there was no mutual agreement regarding the 

termination of the tenancy. However, a surrender may also occur by operation of 

law. See id.; Ingleside Prop., Inc. v. Redfish Bay Terminal, 791 S.W.2d 217, 219 

(Tex. App.—Corpus Christi 1990, no writ). 

For instance, a surrender by operation of law may result by the tenant’s 

abandonment of the premises and by the landlord’s re-entry. Ingleside Prop., Inc., 

791 S.W.2d at 219; Cavalcade Oil Corp. v. Samuel, 746 S.W.2d 842, 844 (Tex.

App.—El Paso 1988, writ denied) (citing Dearborn Stove Co. v. Caples, 236 S.W.2d 

486, 489 (Tex. 1951)); see Jordan, 2004 WL 1351409, at *3. A surrender results as 

a matter of law when the parties have “so acted that it would be inequitable for either 

[the tenant or the landlord] to assert the continued existence of the lease.” Ingleside 

Prop., Inc., 791 S.W.2d at 219. “[T]o have surrender as a matter of law, the 

subsequent use must be substantial enough to show a re-appropriation of the 
15

premises and an intent to foreclose any future rights of the tenant in the premises.” 

Id.

In its brief, Casselsco contends that, contrary to Alvi’s statement in her 

affidavit that she “surrendered the commercial building back to [Casselsco] on July 

1, 2019,” there is a material fact issue regarding whether Alvi surrendered 

possession. Casselsco points to Alvi’s summary-judgment evidence showing that 

Alvi had Dolphin perform a second mold assessment of the premises on July 26, 

2019, indicating that she still had access to the property at that time. In its brief, 

Casselsco asserts, “The fact that [Alvi] ordered another mold report after apparently 

providing notice of termination of the lease, creates a fact question that should have 

precluded summary judgment.” 

Had that been the only summary-judgment evidence, we would be inclined to 

agree with Casselsco. However, Schulze testified in her affidavit—offered by 

Casselsco in support of its response—that the building had been “rented out as office 

space with no reported problems.”

2

In other words, the evidence showed that, after 

Alvi left the premises, Casselsco had taken possession of the property and re-let it 

to new tenants. Thus, the evidence established that Casselsco had engaged in a 

“subsequent use” of the premises that was “substantial enough to show a re2 This statement was contained in a portion of Schulze’s affidavit not objected to by 

Alvi.
16

appropriation of the premises and an intent to foreclose any future rights of [Alvi] in 

the premises.” See Ingleside Prop., Inc., 791 S.W.2d at 719. 

We conclude that the summary-judgment evidence was sufficient to 

conclusively establish that Alvi surrendered possession of the premises by operation 

of law; that is, given the evidence, reasonable minds could not differ as to that 

conclusion. See City of Keller, 168 S.W.3d at 816. We hold that the trial court did 

not err when it granted summary judgment in favor of Alvi on her Property Code 

claims and awarded her statutory damages and attorney’s fees based on those claims. 

See TEX. PROP. CODE § 93.011; see also Haase v. Abraham, Watkins, Nichols, 

Sorrels, Agosto & Friend, L.L.P., 499 S.W.3d 169, 177 (Tex. App.—Houston [14th 

Dist.] 2016, pet. denied) (holding appellate court may affirm traditional summary 

judgment if, after submission of evidence by nonmovant, record establishes 

movant’s right to traditional summary judgment even if movant’s evidence, by itself, 

does not establish movant’s right to traditional summary judgment).

We overrule Casselsco’s first sub-point.

C. Breach of Implied Warranty of Suitability

“Commercial real estate landlords impliedly warrant that their premises are 

suitable for the tenants’ intended commercial purposes.” Gym–N–I Playgrounds, 

Inc. v. Snider, 220 S.W.3d 905, 906 (Tex. 2007). In its second sub-point, Casselsco

asserts that the trial court erred by granting summary judgment on Alvi’s claim that 
17

Casselsco had breached its implied warranty of suitability and in concomitantly 

ordering the Lease rescinded. To establish a breach of implied warranty of 

suitability, “a lessee must show that a latent defect in the facilities existed at the 

inception of the lease, that the facilities were vital to the use of the premises for the 

intended purposes, and that the lessor failed to repair the defect.” Italian Cowboy 

Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 340 (Tex. 2011).

Among its grounds for reversal, Casselsco contends that Alvi failed to offer 

sufficient summary-judgment evidence to conclusively establish each element of her 

claim, including establishing that the mold was a “latent defect.” A latent defect is 

one not discoverable by a reasonably prudent inspection of the premises at the 

inception of the lease. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 

245 S.W.3d 488, 503 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Alvi stated in her affidavit that she signed the Lease on April 15, 2019, and 

took possession of the premises on May 1, 2019. She testified that, during the months 

of May, June, and July, she “detected on my own the smell of mold within the 

building,” prompting her to hire Dolphin to conduct a mold assessment. In its first 

report, Dolphin indicated that, during its May 26 mold assessment, potential mold 

was visible on the carpeting and on walls of the five classrooms in the building. 

Testing of the carpet in two of the classrooms indicated high levels of mold growth. 
18

And testing of the wall of one classroom indicated medium to high mold levels.

Based on the mold levels, Dolphin recommended abatement of the mold.

In short, Alvi’s evidence showed that about one month after she signed the 

Lease, the mold was not only discoverable by an inspection, but it was also 

detectable by smell and by sight. Thus, her evidence did not conclusively establish 

that the presence of mold in the building was a latent defect, a necessary element of 

her claim.

3 See Italian Cowboy Partners, Ltd., 341 S.W.3d at 340; see also B & H 

Aircraft Sales, Inc. v. Engine Components, Inc., 933 S.W.2d 653, 656 (Tex. App.—

San Antonio 1996, no writ) (concluding that inadequate fire extinguishers, hole in 

wall, improper banister on stairway, and existence of chemicals on premises were 

not latent defects and that allegations in affidavit that there were “certain deficiencies 

in the electrical wiring and plumbing” were not alone sufficient to show latent 

defect). Alvi’s evidence also did not necessarily establish that the mold was present 

at the inception of the Lease, that is, when she signed the Lease on April 16. See 

Italian Cowboy Partners, Ltd., 341 S.W.3d at 340; B & H Aircraft Sales, Inc., 933 

3 We make no determination whether mold is a “defect” for purposes of a breach of 

implied warranty of suitability claim. See Italian Cowboy Partners, Ltd. v. 

Prudential Ins. Co. of Am., 341 S.W.3d 323, 340 (Tex. 2011) (“While Italian 

Cowboy characterizes the defect as the presence of the odor itself, we agree with 

Prudential that the proper analysis of the defect in this particular case must inquire 

into the cause of the odor because this is the condition of the premises covered by 

the duty to repair.”).
19

S.W.2d at 656 (concluding that “there [was] nothing in [party’s] affidavit to indicate 

that . . . deficiencies were not discoverable prior to the inception of the lease”).

Viewing the summary-judgment evidence as required, we conclude that Alvi 

did not conclusively establish her claim for breach of implied warranty of suitability. 

See Italian Cowboy Partners, Ltd., 341 S.W.3d at 340. We hold that the trial court 

erred by granting summary judgment on Alvi’s claim for breach of implied warranty 

of suitability and in rescinding the Lease based on that claim.

We sustain Casselsco’s second sub-point.

D. Unchallenged Claim

Casselsco does not challenge the portion of the summary judgment 

“commanding [it] to withdraw from the Texas Secretary of State’s records its 

assumed name designations of ‘Super Kool Kidz Preschool’ and ‘Super Kool 

Kidz,’” based on the trial court’s grant of summary judgment on Alvi’s Business and 

Commerce Code claim. Accordingly, we affirm the portion of the summary 

judgment rendered on that claim. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 

(Tex. 2001) (per curiam) (indicating appellate court should affirm trial court’s 

summary judgment on unchallenged claims); see also Ontiveros v. Flores, 218 

S.W.3d 70, 71 (Tex. 2007) (per curiam) (holding that plaintiff waived error on appeal 

as to claims for tortious interference with contract, conspiracy, conversion, and fraud 

by failing to challenge trial court’s summary judgment on those claims).
20

Conclusion

We reverse the portions of the trial court’s judgment that grants summary 

judgment on the implied-warranty-of-suitability claim and rescinds the Lease based 

on that claim, and we remand that claim for further proceedings. We affirm the 

remainder of the judgment. 

Richard Hightower

Justice

Panel consists of Justices Kelly, Landau, and Hightower