Opinion issued November 17, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00651-CV

———————————

IRMA K. ORTEGA, Appellant

V.

ERNEST DIXON MURRAH D/B/A MURRAH PROPERTIES, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2013-17308

MEMORANDUM OPINION

In this personal injury action, appellant, Irma K. Ortega, appeals the trial 

court’s summary judgment in favor of appellee, Ernest Dixon Murrah, d/b/a 

Murrah Properties, who leased residential property to Ortega. Ortega broke her leg 
2

after she slipped on water that had leaked from a broken pipe under the rental 

property’s kitchen sink. In six issues, Ortega argues that the trial court erred in 

granting summary judgment because Murrah owed Ortega a duty to repair the sink 

and his failure to repair was the cause of her injury. We affirm.

Background

The summary-judgment evidence shows that in July 2011, Ortega entered 

into a residential lease with Murrah, who gave her a telephone number and told her 

to call if anything needed repair. Three months later, Ortega noticed water leaking 

from the plumbing under the kitchen sink. Ortega’s husband called the phone 

number Murrah gave them to report the problem. Ortega adduced evidence that 

her husband called numerous times during October, November, and December, but 

no one came to fix the plumbing. Ortega admitted that she never submitted her 

request for repairs to Murrah in writing. 

In January 2012, while Ortega soaked dishes in the sink, the plumbing 

underneath the sink gave way, and water flooded onto the floor. Ortega mopped 

up the water but knew that the floor was still damp. She then left the room to 

attend to her baby in a different room. When she returned to the kitchen, Ortega 

slipped and fell on the damp floor, breaking her leg. 

Ortega sued Murrah for negligence and premises liability. Murrah moved 

for summary judgment, arguing that he owed Ortega no duty to repair and, 
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alternatively, that his failure to repair was not the cause of Ortega’s injury. Ortega 

argued in response that Murrah had a duty to repair the kitchen sink because (1) he 

agreed to make repairs in the written lease, (2) he undertook a duty to make repairs

in a subsequent oral agreement, and (2) Texas Property Code section 92.052 

imposed such a duty upon him. See TEX. PROP. CODE § 92.052. The trial court 

granted summary judgment in Murrah’s favor, and Ortega appealed.

Discussion

A. Summary Judgment Standard

“We review a trial court’s summary judgment de novo.” Travelers Ins. Co. 

v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). “We review the evidence presented 

in the motion and response in the light most favorable to the party against whom 

the summary judgment was rendered, crediting evidence favorable to that party if 

reasonable jurors could, and disregarding contrary evidence unless reasonable 

jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009). 

When reviewing a summary judgment, we must (1) take as true all evidence 

favorable to the nonmovant and (2) indulge every reasonable inference and resolve 

any doubts in the nonmovant’s favor. Id. In a traditional summary-judgment 

motion, the movant has the burden to show that no genuine issue of material fact 

exists and that the trial court should grant judgment as a matter of law. TEX. R.
4

CIV. P. 166a(a), (c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 

S.W.2d 746, 748 (Tex. 1999). If the movant meets its summary-judgment burden, 

the burden shifts to the nonmovant, who bears the burden to raise a genuine issue 

of material fact precluding summary judgment. Lujan v. Navistar Fin. Corp., 433 

S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet).

B. Applicable Law

In either a negligence or premises-liability case, the plaintiff must establish a 

duty owed to the plaintiff, breach of the duty, and damages proximately caused by 

the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); 

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). 

Whether a duty exists is a question of law for the court. Del Lago Partners, 307 

S.W.3d at 767. In premises-liability cases, the scope of the duty turns on the 

plaintiff’s status. Id.

A lessor generally has no duty to tenants or their invitees for dangerous 

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

926 S.W.2d 284, 285 (Tex. 1996); see Brownsville Navigation Dist. v. Izaguirre, 

829 S.W.2d 159, 160 (Tex. 1992) (noting general rule is that lessor of land is not 

liable to lessee or to others on land for physical harm caused by any dangerous

condition existing when lessee took possession); Morton v. Burton-Lingo Co., 150 

S.W.2d 239, 240–41 (Tex. 1941) (where there is no agreement by landlord to 
5

repair premises and he is not guilty of any fraud or concealment, tenant takes risk 

of his safety and the landlord is not liable to him or any person entering under his 

title or by his invitation for injury caused by reason of their unsafe condition); see 

also Palermo v. Bolivar Yacht Basin, Inc., 84 S.W.3d 746, 748 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). This rule stems from the notion that a lessor 

relinquishes possession of the premises to the lessee. Endsley, 926 S.W.2d at 285. 

Texas courts do recognize exceptions to this general no-duty rule. For 

example, a lessor who agrees to repair the leased property owes a duty to exercise 

ordinary care in making the repair. Id.; Blancett v. Lagniappe Ventures, Inc., 177 

S.W.3d 584, 590 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A lessor may 

also be liable if he concealed defects on the leased premises or an injury is caused 

by a defect on a portion of the premises that remained under the lessor’s control. 

Id. 

C. No Duty to Repair

Ortega does not contend that Murrah concealed a defect or that he retained 

control of the premises after she moved in. Rather, Ortega argues that Murrah may 

be held liable to her because (1) he voluntarily undertook a duty to repair the sink 

in the written terms of the lease or orally or (2) Section 92 of the Texas Property 

Code created such a duty. We address each of these arguments in turn.
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1. The lease did not create a duty to repair

Ortega argues that the written lease contains an agreement by Murrah to 

make repairs. Specifically, she contends that the lease mentions various items that 

the tenant must repair, and a “reasonable tenant would infer from this that the 

things not listed are the responsibility of the landlord.” 

When interpreting a contract, we must ascertain and give effect to the 

contracting parties’ intent. Perry Homes v. Cull, 258 S.W.3d 580, 606 (Tex. 

2008). We focus on the language used in the contract because it is the best 

indication of the parties’ intent. Id. We must examine the entire contract in an 

effort to harmonize and effectuate all of its provisions so that none are rendered 

meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc. 207 S.W.3d 342, 

345 (Tex. 2006). We may not rewrite the contract or add to its language under the 

guise of interpretation. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 

(Tex. 2003). Rather, we must enforce the contract as written. Lopez v. Munoz, 

Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000). 

Paragraph 8 of the lease, entitled “Maintenance by Tenant,” makes Ortega, 

not Murrah, responsible for various types of maintenance, including yard 

maintenance and cleaning and servicing of the stove and refrigerator. It obligates 

Ortega to, among other things:

a. Comply with all obligations primarily imposed 

upon tenants by applicable provisions of building 
7

and housing codes that materially affect health and 

safety.

b. Keep the premises as clean as the condition of the 

Premises permits.

c. Dispose of all ashes, rubbish, garbage, and waste 

in a clean and safe manner.

d. Keep all plumbing fixtures in the Premises as clean 

as its condition permits.

e. Use all electrical, plumbing, sanitary, heating, 

ventilating, air-conditioning and other facilities 

and appliances, in the Premises in a reasonable 

manner.

f. Not deliberately or negligently destroy, deface, 

damage, impair or remove a part of the Premises, 

or knowingly permit any other person to do so.

. . . 

h. Maintain yard (including cutting, trimming, and 

watering grass, shrubs, and plants) at least as well 

as neighbors with nearby premises. 

i. Maintain refrigerator and stove in proper manner. 

This includes keeping them clean and serviced. 

(Landlord furnishes the stove and refrigerator in 

this property). 

Paragraph 25 likewise gives rise to a duty of Ortega to pay for certain repairs. 

Entitled “Repairs,” it provides that Ortega will “promptly pay for all plumbing, 

electrical, air conditioner, appliance and other type repairs, resulting from abuse, 

neglect, and/or ignorance.” The plain language of these provisions cannot be read 

to impose upon Murrah a duty to repair or maintain plumbing. Perry Homes, 258 
8

S.W.3d at 606 (language used in contract is best indication of parties’ intent); see 

Morton, 150 S.W.2d at 241 (statement in lease to effect that repairs on property 

shall be at expense of lessee does not give rise to duty to repair by lessor). 

Ortega nevertheless contends that, by setting forth various items for which 

she is responsible, the lease suggests or at least permits an inference that other 

items are Murrah’s responsibility. But the Texas Supreme Court has long held that 

we must enforce contracts as they are written and not rewrite a contract to add to 

its language under the guise of interpretation. Schaefer, 124 S.W.3d at 162 (citing 

Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex. 1965)). Accordingly, 

we conclude that the terms of the lease did not impose upon Murrah a duty to 

repair the kitchen sink or plumbing.1 See Flynn v. Pan Am. Hotel Co., 143 Tex. 

219, 223 (Tex. 1944) (“The general rule with respect to the duty of the lessor or 

landlord to make repairs, when the suit is by the tenant or the tenant’s servant or 

others entering under the tenant’s title, is that the landlord is under no obligation to 

make repairs in the absence of an agreement to the contrary.”).

 

1 We note that paragraph 9 of the lease permits Murrah to enter the premises to 

make inspections and repairs. But a duty to repair does not arise from a lessor’s 

reservation of rights for such access. See Flynn v. Pan Am. Hotel Co., 183 S.W.2d 

446, 451 (Tex. 1944) (“[T]he reservation by a lessor of a right to enter the 

premises to make such repairs and alterations as it may elect to make is not a 

reservation of control over a part of the building and an obligation on the part of 

the lessor to make repairs does not arise from the reservation of such right.”). 
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2. No enforceable oral agreement to repair

Ortega adduced summary-judgment evidence that Murrah gave her his 

business card “when we moved in” and told her to call him “if we needed anything 

repaired.” She argues that Murrah thus orally undertook to a duty to repair. 

Murrah responds that any oral promise is unenforceable because the lease prohibits 

oral modifications.2

Because the lease was for a one-year term, it was not required to be in 

writing. See TEX. BUS. & COM. CODE § 26.01(a)(1), (b)(5) (lease for term longer 

than one year must be in writing). “[A] written contract not required by law to be 

in writing, may be modified by a subsequent oral agreement even though it 

provides it can be modified only by a written agreement.” Pointe West Ctr., LLC 

v. It’s Alive, Inc., 476 S.W.3d 141, 151 (Tex. App.—Houston [1st Dist.] 2015, pet. 

denied) (quoting Robbins v. Warren, 782 S.W.2d 509, 512 (Tex. App.—Houston 

[1st Dist.] 1989, no writ) (citing Mar–Lan Indus., Inc. v. Nelson, 635 S.W.2d 853, 

855 (Tex. App.—El Paso 1982, no writ))). Accordingly, proof that a contract 

provision requires modifications to be in writing does not establish as a matter of 

 

2 The lease provides: Entire Agreement/Amendment. This Lease Agreement 

contains the entire agreement of the parties and there are no other promises or 

conditions in any other agreement whether oral or written. This Lease may be 

modified or amended in writing, if the writing is signed by the party obligated 

under the amendment. (Emphasis added.) 
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law that the parties did not modify the contract orally. See id.; Robbins, 782 

S.W.2d at 512; Mar–Lan, 635 S.W.2d at 855. 

However, to be enforceable, an alleged oral contract modification must 

satisfy all the essential elements of a contract. See Hathaway v. Gen. Mills, Inc., 

711 S.W.2d 227, 228 (Tex. 1986). There must be both a meeting of the minds and 

new consideration to support the modification. See id. Here, Ortega argued that 

she fell within an exception to the general no-duty rule because Murrah orally 

agreed to make repairs. Accordingly, she bore the burden to raise a material fact 

issue sufficient to defeat summary judgment. See Lujan, 433 S.W.3d at 704 (if 

movant meets its summary-judgment burden, nonmovant bears burden to raise 

genuine issue of material fact precluding summary judgment). But Ortega adduced 

no evidence demonstrating new consideration, which was necessary to support 

Murrah’s alleged oral agreement to provide repairs upon telephonic notice. 

Hathaway, 711 S.W.2d at 228 (alleged oral modification requires consideration). 

Accordingly, Ortega failed to adduce evidence to create a fact issue regarding the 

existence of an enforceable subsequent oral agreement by Murrah to undertake 

repairs with telephonic notice. See id.

Ortega cites Blancett v. Lagniappe Ventures, 177 S.W.3d 584 (Tex. App.—

Houston [1st Dist.] 2005, no pet.), to support her assertion that Murrah owed her a 

duty to repair as a result of his alleged oral agreement, but this case does not 
11

support her claim. Ortega correctly points out that the court of appeals reversed a 

summary judgment for the tenant in Blancett. See id. at 593. However, Blancett 

only added her failure to repair claim after the defendant lessor moved for 

summary judgment. Id. at 592. The trial court nevertheless granted final summary 

judgment for the lessor, and this Court reversed, holding that summary judgment 

on the failure to repair claim was improper because it had not been addressed in the 

lessor’s motion for summary judgment. See id. Thus, Blancett does not address 

the merits of the plaintiff’s failure to repair claim. 

Ortega also argues that Daitch v. Mid-American Apartment Communities,

250 S.W.3d 191 (Tex. App.—Dallas 2008, no pet.), supports reversal. In that case, 

the lease required the lessor to make repairs only upon written notice from the 

tenant, and there was no evidence the tenant gave written notice of the need for 

repair. Id. at 195. Daitch actually supports Murrah’s position, because it 

underscores the general no-duty rule. Id. The court of appeals concluded that 

although the landlord may have come within an exception to the no-duty rule by 

contracting to repair in the lease, its obligation to repair was only triggered by 

written notice from the tenant. Id. Because there was no evidence that the tenant 

ever gave written notice of a problem with the air conditioner, there was no 

evidence of a breach of duty by the landlord. Id. Daitch is thus unlike this case, 
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because the lease in Daitch, unlike the lease in this case, expressly obligated the 

landlord to make repairs upon written notice. Id.

In sum, Ortega’s summary-judgment evidence failed to raise a fact issue 

regarding the existence of consideration, without which there can be no 

enforceable subsequent oral agreement by Murrah to repair based on telephonic 

notice. We therefore conclude that the alleged oral agreement did not give rise to a 

duty to repair. 

3. Property Code Section 92.052 does not create a duty to repair

Ortega argues that section 92.052 of the Texas Property Code creates a 

landlord’s duty to repair any condition that “affects the health and safety” of a 

tenant. Murrah responds that the Texas Supreme Court previously has held that 

Section 92.052 does not apply to personal injury actions.

Section 92.052 requires a landlord to make a diligent effort to repair 

conditions materially affecting the physical health or safety of an ordinary tenant 

under certain circumstances: 

(a) A landlord shall make a diligent effort to repair or remedy a 

condition if:

(1) the tenant specifies the condition in a notice to the person 

to whom or to the place where rent is normally paid; 

. . . 

(3) the condition:
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(A) materially affects the physical health 

or safety of an ordinary tenant.

. . .

(d) The tenant’s notice under Subsection (a) must be in writing 

only if the tenant’s lease is in writing and requires written 

notice.

TEX. PROP. CODE § 92.052.

In Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 

1998), the Texas Supreme Court considered whether section 92.052 applies to 

personal-injury actions. It wrote: “It thus appears that subchapter B [which 

includes section 92.052] was intended to govern disputes between a landlord and a 

tenant over repairs and not liability for personal injuries resulting from premises 

defects actionable under the common law.” Id. at 755. In concluding that the trial 

court should not have given an instruction based on section 92.052, the court held, 

“While [the instruction] correctly states a landlord’s obligation to repair, it does not 

apply in a personal injury case and should not have been included in the charge.” 

Id. Before Timberwalk, the Fourteenth Court of Appeals addressed a related 

argument—that a tenant’s failure to comply with section 92.052 foreclosed an 

otherwise valid claim for personal injury—and came to a similar conclusion. See 

Moreno v. Brittany Square Assocs., 899 S.W.2d 261, 262–63 (Tex. App.—

Houston [14th Dist.] 1995, writ denied). The Moreno court held that the duties in 

Subchapter B were unrelated to personal injury claims. Id. at 263. Thus, a tenant 
14

could maintain a personal injury claim if such a claim was otherwise available. See 

id. 

Here Ortega argues that section 92.052 creates an exception to the no-duty 

rule and thus creates a personal injury claim where one is not otherwise available. 

Following Timberwalk and Moreno, we disagree and hold that section 92.052 does 

not create an independently actionable duty to repair in the context of a personal 

injury claim. See Timberwalk, 972 S.W.2d at 755; Moreno, 899 S.W.2d at 262–63.

In sum, we conclude that Murrah established his entitlement to summary 

judgment by conclusively proving that he owed Ortega no duty to repair, and that 

Ortega failed to raise a fact issue regarding the existence of such a duty under the 

lease, the alleged subsequent oral agreement, or Property Code section 92.052. 

We overrule Ortega’s first, second, and third issues. 

D. Waiver and estoppel

In her fourth and fifth issues, Ortega argues that Murrah waived the right to 

rely upon the lease’s written notice requirement and should be estopped from 

relying upon the requirement. Specifically, Ortega asserts that by “giving tenants a 

card with a phone number on it; telling them to call if they need repairs; agreeing 

to perform repairs when called; and listing specific items in the lease that the 

tenant must repair,” Murrah has either waived the notice provision or is equitably 

estopped from enforcing it. But our holding does not turn on the lease’s notice 
15

provision. Rather, we have concluded that the summary-judgment evidence did 

not raise a fact issue regarding whether Murrah had a duty to repair.

We overrule Ortega’s fourth and fifth issues. 3 

Conclusion

We affirm the judgment of the trial court. 

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Keyes, J., concurring.

 

3 Because we hold that the trial court properly granted summary judgment in 

Murrah’s favor based on the absence of a duty to repair, we need not address 

Ortega’s sixth issue, in which she challenged the summary judgment to the extent 

it was based on lack of causation. See Delgado v. Jim Wells Cty., 82 S.W.3d 640, 

643 (Tex. App.—San Antonio 2002, no pet.) (where summary judgment correctly 

granted on one ground, appellate court need not address arguments attacking 

alternate grounds).