Affirm in part, reverse in part, and remand; Opinion Filed October 28, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00672-CV

MR. DOE AND MRS. DOE, INDIVIDUALLY AND AS NEXT FRIEND OF

JANE DOE, Appellants

V.

TENANT LANDLORD CONNECTION PROPERTIES LLC (D/B/A AND

A/K/A HAZELWOOD APARTMENTS), BARBARA CLARK AND

GREGORY SCOTT VINE, Appellees

On Appeal from the 162nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-17-11431

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Myers, and Justice Evans

Opinion by Justice Myers

This case concerns landlord liability for a tenant’s sexual assaults on the 

fourteen-year-old daughter of other tenants at an apartment complex. Mr. and Mrs. 

Doe, individually and as next friend of their daughter, Jane Doe, appeal the 

summary judgment rendered in favor of the owner of the apartment complex, 

Tenant Landlord Connection Properties LLC (TLCP), its property manager, 

Barbara Clark, and the tenant who committed the sexual assaults, Gregory Vine. 

Appellants bring one issue with eleven sub-issues contending the trial court erred 
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in granting TLCP and Clark’s motion for summary judgment and dismissing all of 

appellants’ claims. We reverse the trial court’s judgment dismissing appellants’ 

claims against Vine because Vine did not move for summary judgment. We affirm 

the trial court’s summary judgment on appellants’ cause of action against TLCP 

for premises liability. We reverse the trial court’s summary judgment on 

appellants’ causes of action against TLCP and Clark for common law and statutory 

fraud and for negligent training and hiring. We remand the case to the trial court 

for further proceedings.

BACKGROUND

In June 2016, appellants applied for an apartment at the Hazelwood 

Apartments owned by TLCP. 1 Appellants spoke to the property manager, Barbara 

Clark. During the application process, Mrs. Doe asked Clark multiple times 

whether any sex offenders lived in the complex. Clark assured her that no sex 

offenders lived there. Clark told Mrs. Doe that a sex offender could not live there 

because prospective residents’ backgrounds were checked for criminal and 

financial issues. Appellants’ application to lease was approved, and they signed a 

lease.

Unbeknownst to appellants and Clark, one of the tenants, Gregory Vine, was 

a registered sex offender. In 2003, which was before TLCP purchased the complex 

 

1 Appellants’ application to lease an apartment is dated April 21, 2016. However, Mrs. Doe testified 

she filled in the application “maybe a week” before they signed the lease on July 1, 2016.
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and Clark began working there, Vine moved to the apartment complex. On his 

rental application, he checked the box indicating he had been convicted of a felony, 

but he did not provide additional information. TLCP purchased the apartment 

complex in 2010, but it did not perform criminal background checks of the existing 

tenants. Although Vine’s lease required him to inform the apartment complex if he 

was required to register as a sex offender, he never did so. If Clark, TLCP, or 

appellants had checked the sex-offender registry website, they would have learned 

that Vine was convicted in 1997 of sexual assault of a fourteen-year-old female 

victim. The website correctly listed Vine’s residence as his apartment in the 

apartment complex. TLCP renewed Vine’s lease in August 2016 for a term ending 

April 30, 2017.

In late January and early February 2017, the Does’ fourteen-year-old 

daughter, Jane Doe, went with Vine, who was forty-three years old, into his 

apartment on two occasions where, she testified, he sexually assaulted her.

Appellants brought suit against Vine for assault. They sued TLCP alleging 

causes of action for premises liability, common law and statutory fraud, and for 

negligence in hiring and training Clark. They also sued Clark for common law 

fraud and asserted that TLCP was vicariously liable for her torts.2 TLCP and Clark 

 

2 Appellants alleged TLCP was vicariously liable for Clark’s torts under the doctrine of respondeat 

superior because Clark was TLCP’s employee or authorized agent. TLCP does not dispute that it is 

vicariously liable for Clark’s torts alleged in this action.
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moved for summary judgment on the claims against them, but Vine did not move 

for summary judgment or otherwise appear in the case. The trial court granted the 

motion for summary judgment and ordered that appellants’ “entire case against 

Defendants is hereby dismissed with prejudice.”

SUMMARY JUDGMENT

Appellants contend the trial court erred in granting TLCP and Clark’s 

motion for summary judgment. 

In a traditional motion for summary judgment, the movant has the burden of 

showing that no genuine issue of material fact exists and that it is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a 

disputed material fact issue exists precluding summary judgment, evidence 

favorable to the nonmovant will be taken as true. In re Estate of Berry, 280 

S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference 

must be indulged in favor of the nonmovant and any doubts resolved in its favor.

City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary 

judgment de novo to determine whether a party’s right to prevail is established as a 

matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 

2000, pet. denied).

Rule 166a(i) provides that after an adequate time for discovery, a party “may

move for 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
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have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). We review a

no-evidence summary judgment under the same legal sufficiency standard used to

review a directed verdict. See Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—

Dallas 2009, pet. denied). Thus, we must determine whether the nonmovant

produced more than a scintilla of probative evidence to raise a fact issue on the

material questions presented. See id. at 762. When analyzing a no-evidence

summary judgment, “we ‘examine the entire record in the light most favorable to

the nonmovant, indulging every reasonable inference and resolving any doubts

against the motion.’” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (quoting

City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). A no-evidence

summary judgment is improperly granted if the nonmovant presented more than a

scintilla of probative evidence to raise a genuine issue of material fact. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla

of evidence exists when the evidence ‘rises to a level that would enable reasonable,

fair-minded persons to differ in their conclusions.’” Id. (quoting Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla

of evidence exists when the evidence is ‘so weak as to do no more than create a

mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)). 

“A fact issue is raised by circumstantial evidence if a reasonable person

would conclude from the evidence that the existence of the fact is more reasonable
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than its nonexistence.” Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex. App.—

Houston [1st Dist.] 1996, no writ). “All that is required is that the circumstances 

point to ultimate facts sought to be established with such a degree of certainty as to 

make the conclusion reasonably probable.” Id. “No fact issue is raised where the 

evidence is so indefinite and uncertain as to preclude a finding.” Id. at 831–32.

In deciding whether a disputed material fact issue exists precluding

summary judgment, evidence favorable to the nonmovant will be taken as true. In

re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every

reasonable inference must be indulged in favor of the nonmovant and any doubts

resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). 

We review a summary judgment de novo to determine whether a party’s right to

prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d

172, 175 (Tex. App.—Dallas 2000, pet. denied).

CLAIMS AGAINST VINE

In their first sub-issue, appellants contend the trial court erred in dismissing 

their claims against Vine. Appellants sued Vine for assault by infliction of bodily 

injury and assault by offensive physical contact. The record does not show that 

Vine filed an answer or any document in this case.3 Although neither Vine nor 

TLCP and Clark moved for summary judgment on appellants’ assault claims 

 

3 Vine has not filed a brief or otherwise appeared in this Court.
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against Vine, the trial court ordered “Plaintiffs’ entire case against Defendants” 

dismissed with prejudice. Appellants objected in their motion for new trial to the 

dismissal of their claims against Vine, but the motion was overruled by operation 

of law. See TEX. R. CIV. P. 329b(c) (motion for new trial overruled by operation of 

law if not ruled on within seventy-five days after signing of final judgment).

A trial court errs in granting a motion for summary judgment on a cause of 

action for which no party moved for summary judgment. See LaGoye v. Victoria 

Wood Condo. Ass’n, 112 S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, 

no pet.). Therefore, the trial court erred in rendering summary judgment on 

appellants’ assault claims against Vine. Having found error, we must determine 

whether the error probably caused the rendition of an improper judgment. See

TEX. R. APP. P. 44.1(a)(1). The granting of summary judgment on a cause of 

action for which summary judgment was not expressly sought is harmless when 

“the omitted cause of action is precluded as a matter of law by other grounds raised 

in the case.” G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) (per 

curiam). None of the grounds TLCP and Clark raised in this case would preclude 

appellants’ claims against Vine. Accordingly, the trial court’s rendition of 

summary judgment on appellants’ claims against Vine was reversible error. We 

sustain appellants’ first sub-issue.
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PREMISES LIABILITY

In their sixth and seventh sub-issues, appellants contend the trial court erred 

in granting summary judgment on appellants’ premises liability cause of action. In 

their petition, appellants alleged that Vine posed an unreasonable risk of harm to 

Jane Doe, that TLCP knew or reasonably should have known of the danger he 

presented, and that TLCP breached its duty of care because it permitted Vine to 

reside on the premises and failed to warn appellants that Vine had previously been 

convicted of sexually assaulting a fourteen-year-old girl.

The elements of a premises liability claim are (1) actual or constructive

knowledge of some condition on the premises, (2) an unreasonable risk of harm

posed by the condition, (3) failure to exercise reasonable care to reduce or

eliminate the risk, and (4) injuries proximately caused by the failure to use

reasonable care. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per 

curiam). TLCP and Clark moved for summary judgment on two grounds for this 

cause of action, asserting appellants had no evidence that TLCP and Clark owed 

them a duty and no evidence that any failure to exercise reasonable care 

proximately caused appellants’ injuries.

Generally, a landlord has no duty to tenants or their invitees for dangerous 

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

926 S.W.2d 284, 285 (Tex. 1996); Caldwell v. Curioni, 125 S.W.3d 784, 790 (Tex. 

App.—Dallas 2004, pet. denied). As the supreme court has stated,
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The general rule is that a landlord is not liable to a lessee for injuries 

caused by an unsafe condition, which can include the unreasonable 

risk of harm from criminal intrusions, unless the landlord was aware 

of the latent dangerous condition at the time the premises were let. 

But when a landlord retains possession or control of a portion of the 

leased premises, the landlord is charged with the duty of ordinary care 

in maintaining the portion retained.

Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993) (citations omitted). The 

Fort Worth Court of Appeals explained the duty as follows: “in a premises 

liability lawsuit involving a landlord-tenant relationship, if the tenant demonstrates 

that the landlord had possession or control of the premises in question, then the 

landlord owed a duty to the tenant as an invitee.” McDonald v. City of the Colony, 

No. 2-08-263-CV, 2009 WL 1815648, at *8 (Tex. App.—Fort Worth June 25, 

2009, no pet.) (mem. op.).

Appellants argue that TLCP and Clark had possession or control over Vine’s 

apartment and thus owed a duty to those inside the apartment, including Jane Doe, 

because, as the landlord and property manager, they controlled who was permitted 

to reside at the apartment unit leased to Vine. Control of the decision whether to 

renew a lease is not control of the premises for purposes of premises liability. In 

this case, the term of Vine’s lease expired on April 30, 2016, and was not renewed 

by TLCP for another year until August 4, 2016. The lease renewal stated the new 

lease period began May 1, 2016, and extended to April 30, 2017. The lease stated 

that on the expiration of the lease period, “this lease will automatically renew 

month-to-month.” Thus, during the May 1 to August 4 period, the lease was 
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automatically renewed on a month-by-month basis, and Vine remained the lessee 

in control of the apartment. As long as Vine was the lessee of the apartment, the 

apartment remained under his control, not TLCP’s, and TLCP had no duty under a 

premises liability theory to make the premises safe from dangers in the apartment 

of which it had no awareness, including the danger from Vine being a sex offender. 

See Johnson Cty. Sheriff’s Posse, Inc., 926 S.W.2d at 285. Appellants agreed in 

the lease that TLCP and Clark had no duty to perform criminal background checks 

and would not be liable for an assault to appellants by another tenant of the 

apartment complex: 

24.4 Loss. Unless otherwise required by law, we’re not liable to any 

resident, guest, or occupant for personal injury . . . from any cause, 

including . . . negligent or intentional acts of residents, occupants, or 

guests. . . . 

24.5 Crime or Emergency. . . . Unless otherwise provided by law, 

we’re not liable to you, your occupants, or your guests for injury, 

damage, or loss to person or property caused by criminal conduct of 

other persons, including . . . assault . . . or other crimes. . . . We’re not 

responsible for obtaining criminal-history checks on any residents, 

occupants, guests, or contractors in the apartment community.

Under these lease provisions, appellants agreed that TLCP had no duty to check 

Vine’s criminal background before renewing his lease.

Appellants also argue TLCP and Clark controlled and had possession of 

Vine’s apartment because, pursuant to the lease, they had the right to enter the 

apartment “for reasonable business purposes.” However, a landlord’s retention of 

the right to re-enter a leased apartment and make repairs “is not a reservation of 
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control over a part of the leased premises.” Peterson v. La Costa Villas, L.L.C., 

No. 05-13-00975-CV, 2014 WL 3513275, at *2 (Tex. App.—Dallas July 15, 2014, 

pet. denied). Accordingly, we cannot agree with appellants that TLCP’s right to 

enter Vine’s apartment “for reasonable business purposes” constituted possession 

or control over Vine’s apartment. 

We conclude appellants did not show that TLCP owed appellants a duty 

under the doctrine of premises liability to prevent Vine’s assaults on Jane Doe.4 

The trial court did not err in granting TLCP and Clark’s motion for summary 

judgment on appellants’ premises liability cause of action. We overrule 

appellants’ sixth and seventh sub-issues.

FRAUD

In their third, fourth, and fifth sub-issues, appellants contend the trial court 

erred in granting TLCP and Clark’s motion for summary judgment on appellants’ 

common law and statutory fraud causes of action.

Common Law Fraud

In their third sub-issue, appellants contend the trial court erred in granting 

TLCP and Clark’s motion for summary judgment on appellants’ cause of action for 

common law fraud. To prevail on a claim of common law fraud by affirmative 

misrepresentation, a plaintiff must prove must prove (1) the defendant made a 

 

4 Having concluded that appellants presented no evidence that TLCP and Clark owed them a duty 

under their premises liability cause of action, we do not address whether appellants presented some 

evidence of proximate causation under this cause of action.
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material misrepresentation that was false; (2) the defendant (a) knew the 

representation was false or (b) made it recklessly as a positive assertion without 

any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act 

upon the representation; and (4) the plaintiff actually and justifiably relied upon the 

representation and thereby suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life 

Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). 

Appellants alleged Clark made an affirmative misrepresentation that was 

false when she told appellants that TLCP did not lease apartments to sex offenders 

and that no sex offenders resided in the complex. TLCP and Clark moved for 

summary judgment on the common law fraud cause of action on this ground: 

“There is no evidence that Clark knew the alleged misrepresentations were false 

when she made them, that she asserted them without knowledge of their truth, or 

that she intended the alleged misrepresentations to be acted upon by Plaintiffs.” 

On appeal, appellants do not dispute that Clark did not know the representations 

were false. They argue she made the representations recklessly. TLCP and Clark 

assert that the representations, even if false, were not made recklessly.

The supreme court has defined “recklessly” in the definition of fraud as 

follows:

A speaker acts recklessly if he makes representations without any 

knowledge of the truth and as a positive assertion. In other words, a 

representation is recklessly made if the speaker knows that he does 

not have sufficient information or basis to support it or if he realizes 

that he does not know whether or not the statement is true.
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Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 527 

(Tex. 1998) (citations and internal quotation marks omitted).5 A plaintiff may use 

direct or circumstantial evidence to prove a defendant made a statement without 

knowledge of its truth. Id. at 526. 

In Johnson & Higgins, Kenneco Energy sought insurance coverage from 

Johnson & Higgins for a complex oil transaction involving oil being delivered by 

sea from Brazil. Anderson, an employee of the insurance agency Johnson & 

Higgins, represented to Brown, Kenneco Energy’s employee, that a policy 

provided certain coverage for an oil shipment. Id. at 511–12. In fact, the policy 

did not provide the coverage, and when the shipment of oil arrived polluted and 

short in quantity, the buyer rejected it. Id. at 512. Kenneco made a claim under 

the insurance policy, but the underwriters rejected it. Id. at 513. Kenneco sued 

Johnson & Higgins for many causes of action including fraud by reckless 

misrepresentation. Id. The supreme court stated:

This standard [fraud by reckless misrepresentation] might apply if 

Anderson, with no familiarity of the policy language, had told Brown 

that the coverage applied without consulting the policy itself. It is 

undisputed that that is not the case. Anderson realized his ignorance 

of the policy language, and obtained a copy of the policy and read it 

over with Brown in an effort to answer her concerns. Thus, the 

 

5 TLCP and Clark argue that recklessness in fraud in requires evidence of “wanton disregard of the 

rights of others or conscious indifference to the result which may follow as a result of one’s acts,” citing 

the 1994 federal case IT Corp. v. Motco Site Trust Fund, 903 F. Supp. 1106, 1128 (S.D. Tex. 1994). The 

Texas Supreme Court’s 1998 description in Johnson & Higgins of recklessness in fraud contains no such 

requirement.
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evidence does not indicate that Anderson made the representation 

“without any knowledge of the truth.” At most, it establishes that 

Anderson should have known that his representations may have been 

incorrect; such evidence, however, is akin to negligent 

misrepresentation, not fraud.

Id. at 527 (citation omitted). The record contains evidence that Clark, unlike 

Anderson, made no attempt to determine the truth of her representation. Although 

Clark had a basis to state that none of the residents who applied for tenancy during 

her time as property manager at the complex were sex offenders—she had 

performed background checks on them as they applied to lease an apartment—she 

had no basis to state that the existing tenants, like Vines, when she became 

property manager were not sex offenders. She had not performed background 

checks on the existing tenants, and she had not reviewed their files to see whether 

they had any background checks or whether any of them, like Vines, had stated on 

their applications that they had been convicted of a felony. Nor did she consult the 

sex-offender registry to determine whether any tenant at the complex was a 

registered sex offender. Thus, Clark had no basis for her affirmative statement that 

no sex offender was a tenant at the apartment complex. 

In support of the argument that there is no evidence of recklessness, TLCP 

and Clark cite Landers v. Aurora Loan Services, LLC, 434 S.W.3d 291 (Tex. 

App.—Texarkana 2014, no pet.). The court of appeals stated:

To raise a question of recklessness, there must be more evidence than 

merely that the person making the representation turned out to be 

wrong, even if the fact-finder found that the representation was 
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incorrect here. There must be some evidence that raises a fact issue 

concerning recklessness, beyond just being wrong. Recklessness may 

be inferred from surrounding circumstances, existing either before or 

after a representation is made. But the recklessness must be that of 

the person making the alleged misrepresentation. While the record 

does raise a fact question concerning whether the speaker was wrong 

in a representation to the Landerses, we do not find any evidence 

raising a fact issue concerning whether the speaker was reckless about 

the truth. We overrule this contention.

Id. at 297. In this case, the evidence is more than the mere fact that Clark was 

wrong about whether a sex offender resided in the complex. Some evidence shows 

she had no basis for the statement. In Landers, however, Aurora Loan Services’ 

employee made a representation that the Landerses would be able to refinance their 

loan, but the opinion provides no facts showing the employee’s statement had no 

basis. See generally id. at 292–96.

We conclude appellants presented more than a scintilla of evidence that 

Clark made a reckless misrepresentation.

TLCP and Clark also asserted in their motion for summary judgment that 

appellants had no evidence to support the third element of fraud, “the defendant 

intended to induce the plaintiff to act upon the representation.” Ernst & Young, 51 

S.W.3d at 577. Mrs. Doe testified that when she applied to lease an apartment, 

she made clear to Clark that they would not move there if a sex offender resided in 

the complex, and Clark “said no, that that was not allowed.” After appellants 

were approved, Mrs. Doe returned to the complex to sign the lease. Mrs. Doe 

again asked Clark if any sex offenders lived in the complex, and Clark said, “No, 
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that’s not allowed.”6 Clark testified that her duties included maintaining the 

complex’s occupancy target of ninety percent. This evidence shows Clark knew 

that appellants would not lease the apartment if there were sex offenders living in 

the complex, and she answered their question telling them no sex offender lived 

there. A reasonable person would conclude from this evidence that it is more 

reasonable that Clark intended to induce appellants to act upon her representation 

and lease an apartment than that she did not have that intention. We conclude this 

testimony constitutes some circumstantial evidence that Clark made the 

representation about sex offenders intending to induce appellants to act upon it. 

Because appellants presented some evidence of the two elements of common 

law fraud that TLCP and Clark challenged in their no-evidence motion for 

summary judgment, we sustain appellants’ third sub-issue.

Statutory Fraud

In their fourth sub-issue, appellants contend the trial court erred in granting 

TLCP and Clark’s motion for summary judgment on appellants’ statutory fraud 

claim. Appellants pleaded a cause of action for fraud in a real estate transaction 

under section 27.01(a)(1) of the Texas Business and Commerce Code: “false 

representation of a past or existing material fact, when the false representation is 

 

6 Mrs. Doe also testified that after appellants signed the lease and moved into their apartment, Mrs. 

Doe saw Clark, “and I asked her if there were any registered sex offenders on the property who, you 

know, may have moved in; and she said, No, I’ve already told you and your husband that if you are a 

registered sex offender or have a sex crime, you cannot live on the property.”
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(A) made to a person for the purpose of inducing that person to enter into a 

contract; and (B) relied on by that person in entering into that contract.”7 TEX.

BUS. & COM. CODE ANN. § 27.01(a)(1). TLCP and Clark moved for summary 

judgment on the following grounds: “there is no evidence that Clark made the 

alleged misrepresentations [1] without intending to fulfill them or [2] for the 

purpose of inducing Plaintiffs into a contract.” 

The first ground, no evidence that Clark made the misrepresentations 

without intending to fulfill them, is not an element of statutory fraud under section 

27.01(a)(1), which was the provision under which appellants pleaded their cause of 

action. See supra note 7. Therefore, appellants had no burden to present evidence 

of this matter. See TEX. R. CIV. P. 166a(i) Comment—1997 (response to 

 

7

Section 27.01(a)(2) permits a cause of action for another type of statutory fraud: “False promise to 

do an act, when the false promise is (A) material; (B) made with the intention of not fulfilling it; (C) made 

to a person for the purpose of inducing that person to enter into a contract; and (D) relied on by that 

person in entering into that contract.” TEX. BUS. & COM. CODE ANN. § 27.01(a)(2). Appellants’ cause of 

action for statutory fraud was under section 27.01(a)(1), not (a)(2). Appellants alleged:

1. Plaintiffs Mr. Doe, Mrs. Doe, and Defendant Hazelwood Apartments’ lease Agreement 

was a transaction involving real estate covered by Texas Business & Commerce Code 

§ 27.01.

2. During the transaction, Defendant Hazelwood Apartments made a false representation 

of fact that Defendant Hazelwood Apartments did not and could not lease apartments to 

sex offenders.

3. The false representation made by Defendant Hazelwood Apartments was made for the 

purpose of inducing Mr. Doe and Mrs. Doe to enter into the lease contract.

4. Mr. Doe and Mrs. Doe relied on the false representations by entering into the lease 

contract.

5. The reliance caused Mr. Doe and Mrs. Doe injuries and damages.

Their pleading alleged false representation of a material fact; it did not allege a false promise to do an act. 

Thus, appellants’ statutory fraud cause of action was under section 27.01(a)(1), and not (a)(2).
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no-evidence motion for summary judgment “need only point out evidence that 

raises a fact issue on the challenged elements”).

On the second ground, no evidence that Clark made the misrepresentations 

“for the purpose of inducing Plaintiffs into a contract,” the same circumstantial 

evidence that supported the common law fraud element that Clark intended to 

induce appellants to act upon the misrepresentation also supports the statutory 

fraud element that TLCP, through its employee Clark, made the misrepresentation 

for the purpose of inducing appellants into a contract. Mrs. Doe testified that 

before she signed the lease, she made clear to Clark that appellants would not lease 

an apartment if a sex offender lived in the complex; Clark then told appellants that 

no sex offender lived in the complex and that sex offenders would not be allowed 

to lease an apartment. Appellants leased the apartment. We conclude this 

evidence constitutes some circumstantial evidence that Clark made the 

misrepresentation for the purpose of inducing appellants into a contract.

We sustain appellants’ fourth sub-issue.

Parol Evidence Rule/Merger Doctrine

In their fifth sub-issue, appellants contend the trial court erred in granting 

TLCP and Clark’s motion for summary judgment on the common law and 

statutory fraud causes of action on the ground that appellants’ evidence of the 

misrepresentations was excluded by the parol evidence rule. 
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Besides the no-evidence grounds discussed above, TLCP and Clark also 

moved for summary judgment on the fraud causes of action on the ground that 

“[t]he parol evidence rule excludes any of Clark’s alleged misrepresentations 

regarding sex offenders at the apartments.” 

“The parol evidence rule precludes consideration of extrinsic evidence to 

contradict, vary, or add to the terms of an unambiguous written agreement, absent 

fraud, accident, or mistake. . . . [E]vidence admitted in violation of the parol 

evidence rule, whether objected to or not, is incompetent and without probative 

force to support any finding.” Bombardier Aerospace Corp. v. SPEP Aircraft 

Holdings, LLC, 565 S.W.3d 280, 301 (Tex. App.—Dallas 2017), rev’d in part on 

other grounds, 572 S.W.3d 213 (Tex. 2019). 

TLCP and Clark point out that the lease provided that TLCP was “not liable 

to any resident, guest, or occupant for personal injury . . . from any cause, 

including . . . negligent or intentional acts of residents, occupants, or guests.” The 

lease also provided that TLCP was “not liable to you, your occupants, or your 

guests for injury, damage, or loss to person or property caused by criminal conduct 

of other persons, including . . . assault.” And, the lease provided that TLCP was 

“not responsible for obtaining criminal-history checks on any residents.” 

Appellants have not brought suit for breach of the lease, nor do they seek to 

enforce any contract. Instead, in their fraud causes of action, they seek 

compensation for the damages they suffered through their reliance on TLCP and 
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Clark’s misrepresentations. See Sturn v. Muens, 224 S.W.3d 758, 762 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (parol evidence rule applies “only 

where such evidence is offered for the purpose of enforcing an inconsistent 

agreement . . . , it does not apply to evidence offered for the purpose of showing 

that no agreement is to be enforced at all, such as by reason of . . . fraud . . . or 

other invalidating cause”). “[T]he parol evidence rule was never intended to 

exclude proof of and investigations about fraud, whatever class of fraud it might 

be.” Burleson State Bank v. Plunkett, 27 S.W.3d 605, 615 (Tex. App.—Waco 

2000, pet. denied). Moreover, the parol evidence rule does not bar the admission 

of evidence contrary to a contract in a fraud cause of action.8 Gregory v. Conn. 

Shotgun Mfg. Co., No. 12-15-00304-CV, 2017 WL 511222, at *3 (Tex. App.—

Tyler Feb. 8, 2017, no pet.) (mem. op.). We conclude the parol evidence rule does 

not bar evidence of TLCP and Clark’s misrepresentations to appellants in the fraud 

causes of action.

TLCP and Clark also argue appellants’ fraud claims are barred because the 

lease’s merger clause provided, “This lease is the entire agreement between you 

and us. You are NOT relying on any oral representations.” Citing two supreme 

court cases, TLCP and Clark assert that where the parties’ intent is clear and 

 

8 Courts have stated that when the parol evidence directly contradicts the express terms of a written 

agreement, the plaintiff might not be able to prove the element of justifiable reliance. Gregory, 2017 WL 

511222, at *3. In this case, TLCP and Clark did not move for summary judgment on the element of 

justifiable reliance, so that concern is not before us.
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specific, a disclaimer of reliance on oral representations is effective to negate a 

fraudulent inducement claim. See Italian Cowboy Partners, Ltd. v. Prudential Ins. 

Co. of Am., 341 S.W.3d 323, 332 (Tex. 2011); Schlumberger Tech. Corp. v. 

Swanson, 959 S.W.2d 171, 179 (Tex. 1997). In those cases, the supreme court 

concluded that in certain situations, a party’s disclaimer of reliance could bar a 

claim for fraudulent inducement. The supreme court stated, “when sophisticated 

parties represented by counsel disclaim reliance on representations about a specific 

matter in dispute, such a disclaimer may be binding, conclusively negating the 

element of reliance in a suit for fraudulent inducement.” Italian Cowboy, 341 

S.W.3d at 332; see also Schlumberger, 959 S.W.2d at 180 (legal counsel 

represented both parties, and both parties were “knowledgeable and sophisticated 

business players”). To prevail on this ground, TLCP and Clark had to prove that 

appellants were “sophisticated parties represented by counsel.” Italian Cowboy, 

341 S.W.3d at 332. The record contains no evidence that appellants were 

represented by counsel or that they were “sophisticated parties.” We conclude 

TLCP and Clark have not established that the disclaimer of reliance doctrine in 

Italian Cowboy and Schlumberger applies in this case.

We sustain appellant’s fifth sub-issue. We conclude the trial court erred in 

granting TLCP and Clark’s motion for summary judgment on appellants’ claims 

for common law and statutory fraud. The trial court’s granting the motion for 

summary judgment on the common law and statutory fraud causes of action 
–22–

resulted in the trial court improperly dismissing these causes of action. Therefore, 

the error is reversible. See TEX. R. APP. P. 44.1(a)(1).

NEGLIGENT TRAINING

In their eighth sub-issue, appellants contend the trial court erred in granting 

TLCP and Clark’s motion for summary judgment and dismissing appellants’ cause 

of action for negligent training. The supreme court “[has] not ruled definitively on 

the existence, elements, and scope of such torts and related torts such as negligent 

training and hiring.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27

(Tex. 2010); see also JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 842 (Tex. 

2018) (quoting Waffle House). However, the supreme court has addressed 

challenges to the sufficiency of the evidence to support elements of the causes of 

action. See JBS Carriers, 564 S.W.3d at 842.

Appellants’ negligent training cause of action alleged TLCP owed a duty to 

the tenants to train its property manager. TLCP breached this obligation “by 

failing to train Defendant Clark as property manager regarding resident safety.” 

Appellants alleged that because of her lack of training, “Clark was an incompetent 

property manager, particularly in regards to maintaining a safe apartment 

complex.” Appellants asserted that TLCP’s “breach of its duty to train its property 

manager proximately caused the occurrence in question and Jane Doe’s damages.”

TLCP and Clark’s motion for summary judgment asserted appellants had no 

evidence that TLCP’s “alleged breach of its duty proximately caused Plaintiffs’ 
–23–

claimed injuries.”9 Proximate causation has two elements: cause in fact and 

foreseeability. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 

506, 518 (Tex. 2019); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).

Cause in Fact

“The test for cause in fact is whether the act or omission was a substantial 

factor in causing the injury without which the harm would not have occurred. If 

the defendant’s negligence merely furnished a condition that made the injuries 

possible, there can be no cause in fact.” W. Invs., 162 S.W.3d at 551 (quotation 

marks and citations omitted). “The word ‘substantial’ is used to denote the fact 

that the defendant’s conduct has such an effect in producing the harm as to lead 

reasonable [people] to regard it as a cause, using that word in the popular sense, in 

which there always lurks the idea of responsibility . . . .” Lear Siegler, Inc. v. 

Perez, 819 S.W.2d 470, 472 (Tex. 1991) (quoting RESTATEMENT (SECOND) OF 

TORTS § 431 cmt. 1 (1965)).

Appellants alleged TLCP did not provide Clark any training regarding 

maintaining a safe apartment complex. Appellants’ response to the motion for 

summary judgment asserted that TLCP’s training of Clark was negligent because 

she was not trained on the Texas Department of Public Safety’s sex-offender 

 

9 TLCP and Clark also assert in their brief that appellants failed to present evidence of negligent 

hiring and training. This was not a ground of the motion for summary judgment. Accordingly, we do not 

address it. See TEX. R. CIV. P. 166a(i) (“The motion must state the elements as to which there is no 

evidence.”).
–24–

website and was not trained on how to respond to inquiries about sex offenders 

living at the complex. Appellants presented evidence that a property manager 

should know about the sex-offender website. The property manager should also 

know how to respond to questions about sex offenders, and the appropriate 

response is to direct the inquirer to the sex-offender website. Clark testified she 

did not know about the sex-offender registry before the incident with Vine and 

Jane Doe and that TLCP had not provided her any training about it.10

Mrs. Doe testified that if she had searched the sex-offender website and had 

seen that Vine was on that website, then appellants would not have leased an 

apartment in that complex. It logically follows that if appellants had not leased an 

apartment in the complex, then Jane Doe would not have been sexually assaulted 

by Vine. However, because Clark had not been instructed by TLCP to check the 

sex-offender website or to refer prospective tenants inquiring about sex offenders 

to the website, the chain of events was created leading to the sexual assaults. Thus, 

TLCP’s failure to train Clark was a substantial factor causing the sexual assaults 

and without which the sexual assaults would not have occurred.

 

10 TLCP and Clark’s motion for summary judgment did not challenge the existence of a duty or the 

breach of a duty under appellants’ negligent training cause of action. Therefore, we presume such a duty 

exists and that TLCP breached it. We make no determination in this case whether TLCP had a duty to 

train Clark on the existence and use of the sex-offender website and to refer prospective tenants to the 

website who inquired about sex offenders. We address only whether, assuming TLCP had a duty to train 

Clark in that manner, TLCP’s failure to train Clark proximately caused appellants’ damages.
–25–

We conclude that Mrs. Doe’s testimony constitutes some evidence that 

TLCP’s failure to train Clark on the use of the sex-offender website and on how to 

respond to questions about sex offenders was a cause in fact of Vine’s sexual 

assaults on Jane Doe.

Foreseeability

The second part of proximate causation is foreseeability. In this case, the 

question is whether it was foreseeable to TLCP that its failure to train Clark on the 

use of the sex-offender website and on how to respond to inquiries about whether 

any sex offenders live in the complex could result in Clark’s misrepresentations to 

appellants and the sexual assaults.

TLCP and Clark assert that the factors set out by the supreme court in 

Timberwalk Apartments, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), should be 

applied to determine the foreseeability of Vine’s assaults on Jane Doe. In 

Timberwalk, a tenant of an apartment complex was sexually assaulted by an 

intruder. Id. at 751. The tenant sued the complex for negligence for failing to 

provide adequate security measures. Id. The trial court applied the jury’s findings 

against the tenant and rendered judgment for the complex, but the court of appeals 

reversed. Id. at 752. The supreme court considered foreseeability as part of the 
–26–

question of whether the complex owed a duty to the plaintiff.11 Id. at 756. The 

supreme court stated that the foreseeability to a landlord of the risk of criminal 

conduct to an apartment dweller “must not be determined in hindsight but rather in 

light of what the premises owner knew or should have known before the criminal 

act occurred.” Id. at 757. It appears that the criminal conduct in that case was 

committed by someone who was not a lessee at the complex and thus was an 

outsider to the landlord. See id. at 751 (conflicting evidence concerning whether 

assailant was living with his common law wife at the complex or was living with 

his girlfriend elsewhere; opinion does not state that assailant was a lessee). In that 

situation, foreseeability is determined by considering “whether any criminal 

conduct previously occurred on or near the property, how recently it occurred, how 

often it occurred, how similar the conduct was to the conduct on the property, and 

what publicity was given the occurrences to indicate that the landowner knew or 

should have known about them.” Id. at 757. These factors, focusing on crimes 

inside the complex and on crime outside and near the complex, clearly apply when 

the assailant is someone from outside the complex and therefore unknown to the 

landlord. In that situation, “what the premises owner knew or should have known” 

was the criminal conduct previously occurring on or near the property. See id. 

 

11 Even though Timberwalk concerned foreseeability as part of the element of duty, the analysis of 

foreseeability is the same for both duty and proximate cause. Del Lago Partners, Inc. v. Smith, 307 

S.W.3d 762, 774 (Tex. 2010).
–27–

Those factors are less relevant when the assailant is a lessee whose risk of criminal 

behavior the landlord either knew or should have known. In that situation, the 

foreseeability of crime committed by a random individual is not relevant. 

Therefore, we look to the more general rule of considering “what the premises 

owner knew or should have known before the criminal act occurred.” See id. Cf. 

W. Invs., 162 S.W.3d at 552 (tenant sexually assaulted child living in apartment 

complex; no proximate causation from landlord’s failure to obtain police reports 

about criminal activity in area and perform background check of assailant because 

they “would [not] have alerted a reasonable landlord to the possibility that [the 

assailant] posed a danger to others” because assailant’s background check showed 

only driving infractions).

In this case, there is no evidence that TLCP actually knew that Vine was a 

sex offender. Therefore, we consider whether TLCP should have known Vine was 

a sex offender and if so, whether it was foreseeable that TLCP’s failure to train 

Clark on how to respond to questions about sex offenders would result in Clark 

misrepresenting the sex-offender status of the other tenants and whether those 

misrepresentations would result in the sexual assault suffered by Jane Doe. See 

Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012) (per curiam) (wrongful conduct 

of negligently hired employee must “proximately cause the injury complained of,” 

and negligently hired employee’s misconduct must be foreseeable). 
–28–

Appellants presented expert testimony about real estate management from 

Ronda Tyler. Tyler stated in her affidavit that when a property owner takes on a 

new property, “it is industry practice to become familiar with the files of existing 

tenants.” She continued:

If a tenant’s file is deficient, e.g. missing documents or incomplete 

information, additional follow up is warranted. In this case, Mr. 

Vine’s tenant file included an incomplete rental application where Mr. 

Vine admitted to a felony conviction but did not provide other 

required details regarding the felony conviction. . . . Defendant TLCP, 

Defendant Clark, and/or the prior property manager should have 

discussed this with Mr. Vine to determine the specifics of the felony.

Tyler’s testimony presents some evidence that TLCP should have known that Vine 

had a previous conviction for sexual assault and therefore that Vine was a sex 

offender.

Tyler also discussed the foreseeability to a landlord that a registered sex 

offender residing at the complex might pose a danger to the other tenants:

A registered sex offender tenant presents safety concerns for other 

tenants. The Texas Apartment Association, which is a respected 

landlord and property management organization in Texas, provides 

resources that address how landlords should handle a registered sex 

offender as a tenant. The Texas Apartment Association has advised 

members that “[t]he chance that a sex crime will be repeated (i.e. the 

recidivism rate) is very high if the offense was a sex crime against a 

child (17 or younger) or a violent sex crime against a child or adult. 

This is so regardless of how many years ago the crime occurred.” 

She also testified about the steps a landlord should take to protect its tenants from 

sex offenders residing in the complex:
–29–

When a sex offender resides on property, landlords and property 

managers should take appropriate steps to protect other tenants and let 

other tenants know. Industry practice and the Texas Apartment 

Association recommend issuing a warning to other tenants. The 

warning may identify the sex offender or provide general warning that 

a sex offender resides on the property. Property managers may also 

refer other tenants to the sex offender registry online.

She also testified about how Clark’s failure to make accurate representations to 

appellants about sex offenders residing in the complex left Mr. and Mrs. Doe 

ignorant of the danger posed by Vine and unable to protect their daughter from 

Vine:

It is my opinion that . . . had [Ms. Clark and TLCP] followed these 

practices, they would have discovered that Mr. Vine was a registered 

sex offender who may pose a danger to the other residents of the 

apartments, particularly minor female children. Had Ms. Clark and 

TLCP followed proper procedures and familiarized themselves with 

Mr. Vine’s tenant file, then they could have discovered that Mr. Vine 

was a registered sex offender and could have prevented the assault on 

Jane Doe by removing Mr. Vine or by providing a warning to Mr. and 

Mrs. Doe that there was a registered sex offender on the property. 

Had Ms. Clark and TLCP complied with standard industry practices, 

they also could have made accurate representation to the Does during 

leasing, which may have prevented the Does from leasing at 

Hazelwood Apartments.

Tyler’s testimony presents some evidence that Vine’s sexual assaults of Jane Doe 

were a foreseeable result of Clark’s misrepresentations to appellants about sex 

offenders residing in the complex and from Clark’s failure to refer appellants’ to 

the sex-offender registry.

Finally, we consider whether Clark’s misrepresentations were foreseeable 

due to TLCP’s failure to train her to answer questions about sex offenders. Clark 
–30–

did not know that a sex offender was one of the tenants at the complex. Because 

TLCP did not train Clark on how to use the sex-offender website and to answer 

questions about sex offenders, it should have been foreseeable to TLCP that Clark 

might unknowingly mislead prospective tenants and not direct them to the sexoffender website.

We conclude appellants presented some evidence that TLCP’s allegedly 

negligent training of Clark proximately caused appellants’ damages. Therefore, 

the trial court erred in granting TLCP and Clark’s motion for summary judgment 

on appellants’ negligent training cause of action. We sustain appellants’ eighth 

sub-issue.

NEGLIGENT HIRING

In their tenth sub-issue, appellants contend the trial court erred in dismissing 

all of appellants’ causes of action against TLCP and Clark because the trial court’s 

order granted TLCP and Clark more relief than they requested in their motion for 

summary judgment.

TLCP and Clark’s motion for summary judgment did not address appellant’s 

cause of action for negligent hiring. The prayer in the motion prays that 

“Plaintiffs’ premises liability, fraud, and negligent training causes of action against 

Defendants be dismissed with prejudice.” TLCP and Clarke did not request 

dismissal of the negligent hiring cause of action.
–31–

“[A] trial court errs in granting a summary judgment on a cause of action not 

expressly presented by written motion . . . .” G & H Towing Co., 347 S.W.3d at 

298. “[T]he error is harmless when the omitted cause of action is precluded as a 

matter of by other grounds raised in the case.” Id. 

In this case, the trial court erred in granting the motion for summary 

judgment on the negligent hiring claim because TLCP and Clark did not move for 

summary judgment on that claim. See id. TLCP and Clark assert the error is 

harmless because appellants had no evidence that the negligent hiring was a 

proximate cause of their damages, and lack of proximate cause was the ground of 

summary judgment for the negligent training cause of action. As discussed above, 

appellants presented some evidence of proximate causation. Because that ground 

does not support summary judgment in this case for the negligent training cause of 

action, it also does not support summary judgment for negligent hiring. We 

conclude the error is reversible.

We sustain appellant’s tenth sub-issue.12

 

12 In the ninth sub-issue, appellants contend the trial court erred in granting the motion for summary 

judgment because the motion for summary judgment did not stand on its own merit. Appellants contend 

in their eleventh sub-issue that the trial court erred in granting the motion for summary judgment on 

grounds other than those expressly presented in the motion for summary judgment. Appellants’ brief 

does not appear to present argument on these issues. Accordingly, we do not address them. See TEX. R.

APP. P. 38.1(i) (“Argument. The brief must contain a clear and concise argument for the contentions 

made, with appropriate citations to authorities and to the record.”).
–32–

CONCLUSION

We affirm the trial court’s judgment dismissing appellants’ cause of action 

for premises liability, and we reverse the trial court’s judgment dismissing 

appellants’ causes of action for negligent hiring, negligent training, common law 

fraud, statutory fraud, respondeat superior and agency, and assault. We remand the 

case to the trial court for further proceedings.

190672F.P05

/Lana Myers/

LANA MYERS

JUSTICE
–33–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MR. DOE AND MRS. DOE, 

INDIVIDUALLY AND AS NEXT 

FRIEND OF JANE DOE, Appellants

No. 05-19-00672-CV V.

TENANT LANDLORD 

CONNECTION PROPERTIES LLC 

(D/B/A AND A/K/A HAZELWOOD 

APARTMENTS), BARBARA 

CLARK AND GREGORY SCOTT 

VINE, Appellees

On Appeal from the 162nd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-17-11431.

Opinion delivered by Justice Myers. 

Chief Justice Burns and Justice Evans 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. We REVERSE that 

portion of the trial court's judgment that dismisses appellants’ causes of action for 

common law fraud, statutory fraud, negligent training, negligent hiring, respondeat 

superior and agency, assault: infliction of bodily injury, and assault: offensive 

physical conduct. In all other respects, the trial court’s judgment is AFFIRMED. 

We REMAND this cause to the trial court for further proceedings consistent with 

this opinion.

It is ORDERED that appellants Mr. Doe and Mrs. Doe, individually and as 

next friend of Jane Doe, recover their costs of this appeal from appellees Tenant 

Landlord Connection Properties LLC (d/b/a and a/k/a Hazelwood Apartments), 

Barbara Clark and Gregory Scott Vine. 

Judgment entered this 28th day of October, 2020