Caldwell v. Curioni

• Decision Date: 07 January 2004
• Docket Number: No. 05-03-00135-CV.,05-03-00135-CV.
• Citation: 125 S.W.3d 784
• Parties: Warren D. CALDWELL and Laura S. Caldwell, Appellant, v. David N. CURIONI, Appellee.
• Court: Texas Court of Appeals

125 S.W.3d 784

Warren D. CALDWELL and Laura S. Caldwell, Appellant, v. David N. CURIONI, Appellee.

No. 05-03-00135-CV.

Court of Appeals of Texas, Dallas.

January 7, 2004.

Rehearing Overruled February 10, 2004.

Larry M. Lesh, Dallas, for appellant.

Hubert A. Crouch, III, Dallas, for appellee.

Before Justices JAMES, FITZGERALD, and LANG.

OPINION

Opinion by Justice LANG.

Appellants Warren and Laura Caldwell ("Caldwells") brought suit against appellee David Curioni for damages for personal injuries and property damage allegedly caused by the infestation of toxic mold in the house the Caldwells rented from Curioni. The trial court granted Curioni's motions for summary judgment pursuant to Texas Rule of Civil Procedure 166a(c) and 166a(i). The Caldwells assert seven issues on appeal. In issues one through four, the Caldwells assert that: 1) the trial court erred in granting Curioni's traditional summary judgment motion because Curioni failed to conclusively negate that he owed a duty to the Caldwells, 2) contributory or comparative negligence could not abrogate Curioni's duty to the Caldwells, and 3) an "as-is" provision in the lease did not bar the Caldwells' action against Curioni. In issues five through seven, the Caldwells assert the trial court erred in granting Curioni's no-evidence motion because the Caldwells presented evidence of genuine issues of material fact regarding 1) whether Curioni breached his duty to the Caldwells, and 2) whether Curioni's breach of duty proximately caused the Caldwells' damages. Because we find Curioni failed to conclusively negate that he owed a duty to the Caldwells and that there were genuine issues of material fact regarding Curioni's breach of duty and causation of the Caldwells' damages, we reverse the judgment of the trial court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The Caldwells filed a suit against Curioni, their landlord, for personal injuries and property damage to their furniture and belongings allegedly caused by the exposure to mold. As foundation for their suit, the Caldwells claim that in response to a newspaper ad describing a rental property as "freshly redone," they met Curioni's agent and walked through Curioni's house on Richland Drive on two occasions. During these visits, the Caldwells noticed an odor and questioned Curioni's agent about it. The agent told them the prior tenants had pets, but that the carpets had been thoroughly and professionally cleaned. During their second visit to the property, the Caldwells signed a lease. A handwritten note was added to the lease indicating there was a residual pet odor for which the Caldwells would not be held responsible, and the property was "as-is with refrige. ice maker not working."

Within a week of moving into the property the Caldwells allege they and their infant son became ill with a variety of symptoms including headaches, fever, diarrhea, and congestion. Mrs. Caldwell's sister, who came to stay with their son, noticed a swollen, water-damaged door, and upon further investigation, discovered greenish-black mold along the walls and in the carpet and carpet pad throughout the house. Mrs. Caldwell and her son moved out of the house that day. Mr. Caldwell stayed one more day, but after waking the next morning with severe nausea, vomiting, wheezing, and diarrhea, he also moved out.

The Caldwells contacted Baker, a friend in the construction business, who inspected the property and opined that the property had previously been flooded. After more extensive analysis, Baker offered his opinion that there had been a single catastrophic event which had flooded the house and resulted in the growth of a large quantity of mold. Baker also offered his opinion that Curioni's agent, as a former employee of a reputable drywall company, would have been aware of the dangers of mold at the time the Caldwells rented the property. Baker noted that the carpet tackboards had been freshly painted. He suggested this was an attempt to "cover up a serious problem." Baker noted that the water heater bore a sticker indicating it was installed in September of 1999, and the water records for the property showed a spike in water usage in September of 1999. Baker offered his opinion that the water heater had ruptured, flooded the property, and been replaced. Additionally, Baker opined that the work done to make the property ready for occupancy was inadequate and that "[a] reasonably prudent person who is in the business of renting properties to the public should have known the harmful effects of mold and should have been aware of, and cured the existence of mold in the Richland house."

The Caldwells also offered the opinion of Porter, a licensed real estate broker, that "David Curioni should have been aware of, and remediated, the mold prior to renting his house to the Caldwells." The Caldwells contacted the Texas State Department of Environmental Health, who advised them to stay out of the house until the mold problem was fixed and recommended they hire Hulla, an industrial hygienist. Hulla collected and tested mold samples from the property and reported he found several strains of mold, including Stachybotrys, which produces a mycotoxin dangerous to humans. Also, Hulla reported on the amount of mold he discovered, but observed "[t]here are no established standards for permissible airborne fungal concentrations." The Caldwells consulted various doctors for treatment for themselves and their son regarding continuing problems they allege were caused by the mold. Reports from their doctors attributing their problems to exposure to mold were offered as summary judgment evidence by the Caldwells.

The trial court granted Curioni's traditional and no-evidence summary judgment motions. The Caldwells brought this appeal.

STANDARD OF REVIEW

A. Summary Judgment Under Tex.R. Civ. P. 166a(c).

This Court reviews 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). The standards for reviewing a traditional summary judgment are well-established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Id. at 23-24. To establish it is entitled to summary judgment a defendant must either disprove an element of the plaintiff's case or prove an affirmative defense. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Where, as here, the summary judgment does not state the grounds upon which it was granted, the nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no pet.).

B. No-Evidence Summary Judgment Under Tex.R. Civ. P. 166a(i).

Under Texas Rule of Civil Procedure 166a(i), after an adequate time for discovery, a party may move for summary judgment on the ground that no evidence exists to support one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 866 (Tex.App.-Houston [1st Dist.] 1999), aff'd, 73 S.W.3d 193 (Tex. 2002). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); see Brewer & Pritchard, P.C., 7 S.W.3d at 866-67; Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-Dallas 2000, no pet.). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Gen. Mills, 12 S.W.3d at 832-33. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Id.; see Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Gen. Mills, 12 S.W.3d at 833. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow, 953 S.W.2d at 711.

EXISTENCE OF A DUTY

In their second issue, the Caldwells argue Curioni failed to negate the existence of a duty owed by him to the Caldwells and, for that reason, Curioni's traditional motion for summary judgment should not have been granted. A lessor generally has no duty to tenants or their invitees for dangerous conditions on the leased premises. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). However, there are several exceptions to the general rule. A lessor who makes repairs may be liable for injuries resulting from the lessor's negligence in making the repairs. Id.; see also Restatement (Second) of Torts § 357 (1965). In addition, a lessor who conceals defects on the leased premises of which the lessor is aware may also be liable. Johnson County Sheriff's Posse, Inc., 926 S.W.2d at 285; see also Restatement (Second) of Torts § 358 (1965).

The lessor need not have actual knowledge of a...