Affirmed and Opinion filed December 20, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-01005-CV

ST. ANTHONY’S MINOR EMERGENCY CENTER, L.L.C. D/B/A ST. 

ANTHONY’S INSTANT CARE CLINIC, Appellant 

V.

ROSS NICHOLSON 2000 SEPARATE PROPERTY TRUST AND ROSS 

NICHOLSON, Appellees 

On Appeal from the 55th District Court 

Harris County, Texas 

Trial Court Cause No. 2015-61264 

O P I N I O N 

In this case involving the lockout of a commercial sublessee, the trial court 

dismissed all of the sublessee’s claims in two summary judgment rulings. Because 

the lessor conclusively established that no landlord-tenant relationship existed 

between itself and the sublessee and the landlord was legally justified in conducting 

the lockout, we affirm.
2

Background

Green Bank, N.A., as landlord, entered into a commercial lease of office space 

with Experience Infusion Centers, LLC (EIC), as tenant. The lease prevented EIC 

from subletting any of the space without the prior written consent of Green Bank. At 

the signing of the lease, however, EIC’s manager, Jim Rutherford, informed Green 

Bank’s vice president of his business plan to sublease most of the premises to 

compatible medical companies, specifically mentioning St. Anthony’s Instant Care 

Clinic. Subleases with various companies were executed over the next several 

months, to which Green Bank did not object. One of the sublessees was St. 

Anthony’s, which also was managed by Jim Rutherford. Its sublease required rent 

to be paid to EIC.

Green Bank assigned the lease with EIC to the Ross Nicholson 2000 Separate 

Property Trust (the Trust). EIC defaulted on the lease. St. Anthony’s had been paying 

rent to EIC, but EIC failed to fulfill its own rental obligations. The Trust 

subsequently locked St. Anthony’s out of its offices. St. Anthony’s sued the Trust 

and Ross Nicholson individually (collectively, Nicholson), asserting claims for 

unlawful lockout, constructive eviction, and tortious interference, asserting vicarious 

liability as to Ross Nicholson, and seeking damages. 

Nicholson filed a motion for summary judgment on the grounds that 

(1) Nicholson and St. Anthony’s did not have a landlord-tenant relationship, and 

(2) there was no evidence that Nicholson tortiously interfered with the sublease and, 

even if there were, Nicholson was justified in conducting the lockout because 

Nicholson had a legal right to interfere with the sublease. St. Anthony’s filed a 

response and special exceptions to the motion, contending that the motion does not 

clearly state the elements on which Nicholson sought summary judgment on the 

tortious interference claim or whether Nicholson sought traditional or no evidence 
3

summary judgment on that claim. In its response, St. Anthony’s asserted two new 

claims—for negligence and nuisance.1

 The trial court granted the motion and signed 

an order granting interlocutory judgment on the grounds that “the landlord had no 

separate contractual obligation to” St. Anthony’s and the “action by the landlord was 

entirely lawful and supported by the facts and landlord’s rights under its lease with 

EIC.” In other words, the trial court concluded that (1) Nicholson proved as a matter 

of law that it lacked a landlord-tenant relationship with St. Anthony’s, and (2) 

Nicholson was justified as a matter of law in conducting the lockout. 

Nicholson filed a second motion for summary judgment on the nuisance claim 

on the basis that Nicholson did not owe a contractual duty to St. Anthony’s to refrain 

from conducting the lockout because they did not share a landlord-tenant 

relationship. The trial court granted the motion and rendered a final take nothing 

summary judgment. 

Analysis

St. Anthony’s contends that the trial court erred in denying the special 

exceptions and granting summary judgment in favor of Nicholson. We conclude that 

the trial court did not err in denying the special exceptions and in granting the 

summary judgment because there is no landlord-tenant relationship between 

Nicholson and St. Anthony’s. 

I. No Error in Implicit Denial of Special Exceptions 

In its fifth issue, St. Anthony’s contends the trial court abused its discretion 

by implicitly overruling the special exceptions. St. Anthony specially excepted to 

the first motion for summary judgment, asserting as to the tortious interference 

claim, that (1) it was unclear whether Nicholson was moving for summary judgment 

 

1 On appeal, St. Anthony’s refers to these claims as “the nuisance claim.”
4

on traditional or no evidence grounds, and (2) it was unclear which elements of 

tortious interference were being challenged. Presuming without deciding that the 

trial court implicitly denied the special exceptions, we conclude it did not abuse its 

discretion in doing so. In the first summary judgment motion, St. Anthony’s 

expressly invoked traditional summary judgment “pursuant to” rule 166a(c) and did 

not invoke the no-evidence summary judgment rule 166a(i). See Tex. R. Civ. P. 

166a(c), (i). Moreover, Nicholson did not move for summary judgment on any 

elements of tortious interference. Nicholson instead moved for summary judgment 

on its affirmative defense of justification.2 We overrule St. Anthony’s fifth issue. 

II. No Error in Granting Summary Judgment 

In its remaining issues, St. Anthony’s challenges the trial court’s summary 

judgment as to each of St. Anthony’s claims. We conclude that the trial court did not 

err in granting summary judgment on all of St. Anthony’s claims. 

We review a trial court’s grant of summary judgment de novo. Smith v. Smith, 

541 S.W.3d 251, 259 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We consider 

all the evidence in the light most favorable to the nonmovant, crediting evidence 

favorable to the nonmovant if a reasonable factfinder could and disregarding 

contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. 

Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 

A party filing a traditional motion for summary judgment has the initial 

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

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp 

 

2 Although Nicholson stated in the motion that the evidence did not support St. Anthony’s 

allegations as to the elements of tortious interference, the basis of the motion was to assert the 

justification defense. The motion stated, “[E]ven if the court were to assume that the plaintiff was 

able to present some evidence on each of these elements of a tortious interference claim, the court 

should still grant [the] motion based on the affirmative defense of privilege of justification.”
5

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant does so, 

the burden shifts to the non-movant to raise a genuine issue of material fact sufficient 

to defeat summary judgment. Smith, 541 S.W.3d at 259. The evidence raises a 

genuine issue of material fact if reasonable and fair-minded jurors could differ in 

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

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

When a trial court grants a summary judgment on specific grounds, we 

generally limit our consideration on appeal to the grounds upon which summary 

judgment was granted. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 

(Tex. 1993). Conversely, when the order granting summary judgment does not 

specify the grounds upon which the trial court relied, we must affirm the summary 

judgment if any of the independent summary-judgment grounds is meritorious.3

State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S. 

Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). 

Wrongful Lockout, Constructive Eviction, and Nuisance Claims

Nicholson moved for summary judgment on the wrongful lockout and 

constructive eviction claims on the basis that Nicholson did not have a landlordtenant relationship with St. Anthony’s. The trial court expressly agreed in its 

interlocutory order granting partial summary judgment. Similarly, Nicholson moved 

for summary judgment on the nuisance claim on the basis that Nicholson did not 

owe a negligence duty to St. Anthony’s because the parties lacked a landlord-tenant 

relationship. 

 

3 Here, the trial court articulated grounds for summary judgment in the order granting the 

first summary judgment motion as to St. Anthony’s claims for unlawful lockout, constructive 

eviction, and tortious interference, so we limit our review to the grounds articulated by the trial 

court as to these claims. The trial court did not articulate grounds for summary judgment as to the 

nuisance claim. 
6

The parties agree that to establish an unlawful lockout or constructive 

eviction, a plaintiff is required to prove a landlord-tenant relationship between the 

parties.4 See Tex. Prop. Code § 93.001; Williamson v. Howard, 554 S.W.3d 59, 69 

(Tex. App.—El Paso 2018, no pet.) (listing elements of constructive eviction); Lazell 

v. Stone, 123 S.W.3d 6, 11 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(same); see also Garcia v. Galvan, No. 14-11-00338-CV, 2012 WL 1606312, at *3 

(Tex. App.—Houston [14th Dist.] May 8, 2012, pet. dism’d w.o.j.) (mem. op.) 

(listing elements of wrongful eviction). St. Anthony’s argues it has done so by virtue 

of its sublease with EIC. But a landlord that is not a party to a sublease generally has 

no rights or obligations under the sublease because there is no privity of estate or 

contract between the landlord and sublessee. See Tenet Health Sys. Hosps. Dallas, 

Inc. v. N. Tex. Hosp. Physicians Group, P.A., 438 S.W.3d 190, 198 (Tex. App.—

Dallas 2014, no pet.); see also Tawes v. Barnes, 340 S.W.3d 419, 430-31 (Tex. 2011)

(acknowledging when a sublessee is not a signatory to a lease agreement, there is no 

privity of contract between the sublessee and lessor). Any such rights or obligations 

must be determined from the language of the lease. See, e.g., Two Briarlake Plaza 

LP v. Samsung Eng’g Am., Inc., No. 01-15-01041-CV, 2016 WL 6462403, at *3, 8

(Tex. App.—Houston [1st Dist.] Nov. 1, 2016, no pet.) (mem. op.) (holding that 

plain language of lease allowed lessee to sublet parking spaces in connection with 

 

4

 The general requirements for constructive eviction are (1) an intention on the part of the 

landlord that the tenant shall no longer use or enjoy the premises; (2) a material act or omission by 

the landlord that substantially interferes with the use and enjoyment of the premises; (3) the act 

must permanently deprive the tenant of the use and enjoyment of the premises; and (4) the tenant 

must abandon the premises within a reasonable time after the commission of the act. Williamson 

v. Howard, 554 S.W.3d 59, 69 (Tex. App.—El Paso 2018, no pet.). The applicable case law does 

not recognize a claim for “unlawful lockout,” but there is a claim for “wrongful eviction,” which 

mirrors St. Anthony’s “unlawful lockout” claim. The elements for wrongful eviction include (1) 

the existence of an unexpired lease; (2) the tenant’s occupancy of the premises; (3) the landlord’s 

eviction of the tenant; and (4) damages suffered by the tenant attributable to the eviction. Garcia 

v. Galvan, No. 14-11-00338-CV, 2012 WL 1606312, at *3 (Tex. App.—Houston [14th Dist.] May 

8, 2012, pet. dism’d w.o.j.) (mem. op.).
7

office sublease).

As discussed, under the lease, EIC was prohibited from subletting any of the 

space without the prior written consent of Green Bank and thereafter the Trust as 

Green Bank’s successor. It is undisputed that no such written consent was obtained. 

Accordingly, there is no landlord-tenant relationship between Nicholson and St. 

Anthony’s.

5

St. Anthony’s argues that it has a landlord-tenant relationship with Nicholson 

under chapter 92 of the Property Code, which St. Anthony’s concedes applies only 

to residential tenancies. See Tex. Prop. Code § 92.002 (“This chapter applies only to 

the relationship between landlords and tenants of residential rental property.”). 

Regardless, St. Anthony’s urges us to apply the definitions for “landlord” and 

“tenant” in chapter 92 to commercial tenancies under chapter 93, relying on Levine 

v. Smith, 625 S.W.2d 777 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.).

6 But that 

 

5 St. Anthony’s argues that Green Bank “acquiesced” to the sublease, citing Tenet Health 

Sys. Hosps. Dallas, 438 S.W.3d at 198 (“The sublease may become valid and binding by either 

the agreement, acquiescence or ratification of the lessor.”). The language in the opinion that St. 

Anthony’s relies on for this argument does not stand for the proposition that a landlord’s 

acquiescence creates a landlord-tenant relationship between the lessor and the sublessee. The court 

of appeals merely noted that a sublessee cannot avoid its obligations under a sublease merely 

because the lessor did not give its consent. Id. The court acknowledged that when a landlord is not 

a party to a sublease, there is no privity of contract between the landlord and sublessee. Id. 

St. Anthony’s also argues that it was a holdover tenant because it was a subtenant that 

continued to occupy subleased space after the master lease was terminated. Presuming that St. 

Anthony’s was a holdover tenant, there are two types in Texas: a holdover tenant at will and a 

holdover tenant at sufferance. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 

915 (Tex. 2013). A holdover tenant at will has the landlord’s consent to remain in the property, 

id., which was lacking here. A holdover tenant at sufferance, on the other hand, lacks the landlord’s 

consent, and the landlord may treat that tenant as a trespasser unless the lease provides otherwise. 

Id. at 915-16. 

6 Under chapter 92, “landlord” is defined as “the owner, lessor, or sublessor of a dwelling, 

but does not include a manager or agent of the landlord unless the manager or agent purports to be 

the owner, lessor, or sublessor in an oral or written lease.” Tex. Prop. Code § 92.001(2). “Tenant” 

is defined as “a person who is authorized by a lease to occupy a dwelling to the exclusion of others 

and . . . who is obligated under the lease to pay rent.” Id. § 92.001(6).
8

case involved a residential tenancy.7Id. at 777. Nicholson argues that chapter 92 

definitions do not apply to chapter 93 cases. Even if we were to conclude that the 

definitions were applicable here, which we decline to do, they merely describe 

parties that can create a landlord-tenant relationship. The relationship itself is still 

governed by the terms of the applicable lease. See Two Briarlake Plaza, 2016 WL 

6462403, at *3. 

Nicholson similarly argues that the trial court properly granted summary 

judgment as to St. Anthony’s nuisance claim because Nicholson did not owe a duty 

to St. Anthony’s absent a landlord-tenant relationship. Under these circumstances, 

we agree. 

The law of nuisance recognizes that certain injuries to a person’s right to the 

“use and enjoyment of property” can also constitute a form of legal injury for which 

a legal remedy will be granted. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 

S.W.3d 580, 594 (Tex. 2016). It is not a separate cause of action. Id. at 594, 600. To 

establish a cause of action for which the law provides a right to relief, at least in the 

absence of circumstances giving rise to strict liability, “there must not only be an 

injury or loss but it must have been occasioned by the commission of a legal wrong, 

that is, violation of legal right and a breach of legal duty.”8

Id. at 601. 

The existence of a legal duty is a question of law for the court to decide from 

the facts surrounding the occurrence at issue. Bujnoch v. Nat’l Oilwell Varco, L.P., 

 

7

In Levine, the trial court refused a jury question that asked whether the plaintiff was a 

tenant under an inapplicable statute. 625 S.W.2d at 778. The court of appeals concluded that the 

word “tenant” was used in the same context in both statutes and therefore concluded that the 

legislature intended “tenant” to have the same meaning as in the applicable statute. Id. The statutes 

at issue were previously codified under articles 5236d-f of the now repealed Texas Civil Statutes 

but have been recodified in the Property Code. See Tex. Rev. Civ. Stat. arts. 5236d, 5236e, 5236f.

8 A defendant can be liable for creating a nuisance based on negligence or other culpable 

conduct. Crosstex, 505 S.W.3d at 601-02.
9

542 S.W.3d 2, 6 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); see also 

Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). Texas law 

generally imposes no duty to take action to prevent harm to others absent certain 

special relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 

837 (Tex. 2000). 

When EIC defaulted on its lease, it had no right of occupancy and thus could 

no longer confer a right of occupancy onto St. Anthony’s. See Tenet Health Sys. 

Hosps. Dallas, 438 S.W.3d at 198. Because there is no landlord-tenant relationship 

or other special relationship between Nicholson and St. Anthony’s, as a matter of 

law under these facts, Nicholson owed St. Anthony’s no legal duty preventing 

Nicholson from conducting the lockout.9

 

Because there is no landlord-tenant relationship between Nicholson and St. 

Anthony’s, we conclude the trial court did not err in granting summary judgment on 

St. Anthony’s unlawful lockout and constructive eviction claims. We similarly 

conclude that the trial court did not err in granting summary judgment on the 

nuisance claim because Nicholson did not owe a legal duty to St. Anthony’s to 

refrain from conducting the lockout. 

Tortious Interference Claim 

Nicholson argues that the trial court did not err in granting summary judgment 

on St. Anthony’s tortious interference claim because Nicholson conclusively 

established it had a legal right to interfere with the sublease. We agree. 

Even when a plaintiff presents evidence of each element of tortious 

interference, a defendant still may prevail by establishing the affirmative defense of 

 

9 St. Anthony’s does not allege any kind of special relationship with Nicholson other than 

a landlord-tenant relationship.
10

justification. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996). If the 

trial court finds as a matter of law that the defendant had a legal right to interfere 

with a contract, then the defendant has conclusively established the justification 

defense. Id. A defendant generally establishes justification as a matter of law when 

the acts the plaintiff complains of as tortious interference are merely the defendant’s 

exercise of its own contractual rights. Prudential Ins. Co. of Am. v. Fin. Review 

Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000). 

Nicholson presented evidence that the lease was assigned to the Trust, EIC 

failed to pay rent under the lease, and the Trust was entitled to assert its contractual 

right of lockout under the lease. Moreover, as discussed, under the lease, EIC was 

prohibited from subletting any of the space without prior written consent. 

Accordingly, the Trust exercised its contractual rights under the lease in conducting 

the lockout and conclusively established that it was legally justified in doing so. 

We overrule St. Anthony’s issues complaining of the trial court’s grant of 

summary judgment. 

Conclusion

Because Nicholson conclusively established that no landlord-tenant existed 

between itself and St. Anthony’s and it was legally justified in conducting the 

lockout, the trial court did not err in granting summary judgment in favor of 

Nicholson. We affirm the judgment of the trial court. 

 

 /s/ Martha Hill Jamison 

 Justice 

Panel consists of Justices Jamison, Wise, and Jewell.