Hernandez v. Kasco Ventures, Inc.

• Decision Date: 27 May 1992
• Docket Number: No. 08-91-00238-CV,08-91-00238-CV
• Citation: 832 S.W.2d 629
• Parties: Reymundo HERNANDEZ, Appellant, v. KASCO VENTURES, INC., Appellee.
• Court: Texas Court of Appeals

Page 629

832 S.W.2d 629

Reymundo HERNANDEZ, Appellant, v. KASCO VENTURES, INC., Appellee.

No. 08-91-00238-CV.

Court of Appeals of Texas El Paso.

May 27, 1992.

Al Melendez, Melendez & Lozano, El Paso, for appellant.

Karl O. Wyler, Kemp, Smith, Duncan & Hammond, Brenda J. Norton, El Paso, for appellee.

Before WOODARD, KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal by Reymundo Hernandez, Appellant, from a summary judgment entered in favor of Kasco Ventures, Inc., Appellee, on theories of negligence, strict liability, the Texas Deceptive Trade Practices Act and breach of warranty. In a single point of error, Hernandez claims there exists genuine issues of material fact as to each individual cause of action. We affirm in part and reverse and remand in part.

I. SUMMARY OF THE EVIDENCE

In June 1984, Kasco and Miles Transportation & Distribution Co. (Miles) negotiated the lease of a warehouse located in El Paso, Texas. Kasco leased the warehouse to Miles for storage purposes, which included the loading and unloading of freight. In order to facilitate Miles' intended use of the leased premises, Kasco equipped the warehouse with dock levelers prior to Miles taking possession of the premises in August 1984. ¹

The record indicates that shortly after taking possession of the premises, Miles began experiencing various problems with the dock levelers. These problems were communicated to Kasco. In an effort to resolve the problems, Kasco served as the intermediary between Miles and the manufacturer of the dock levelers. Pursuant to Kasco's request, the manufacturer purportedly repaired the dock levelers. Miles, however, maintains that such repairs did not eliminate all of the problems the warehousemen were having with the levelers.

After having occupied the premises for a period of over a year, Miles entered into a written lease agreement with Kasco in January 1986. The record indicates that the January 1986 lease agreement represents the entire agreement that existed between Miles and Kasco.

According to the terms of the lease agreement, Miles had the duty to maintain "the leased premises, except for landscaping and exterior grounds, exterior walls, foundation and the roof...." On the other hand, the lease agreement required Kasco to maintain the "[f]loors, walls and ceilings in good repair at the time of commencement of the Lease."

In November 1986, Hernandez, a warehouseman of Miles, acting in the course and scope of his employment, was injured due to a malfunctioning dock leveler. As a result of the injury, Hernandez sued Kasco under theories of negligence, warranty, strict liability and the Texas Deceptive Trade Practices Act.

Hernandez's action is based on the fact that Kasco leased the warehouse and surrounding premises to Miles, Hernandez's employer. Hernandez has alleged that as the landlord, Kasco was responsible for the dock levelers. According to Hernandez, it was Kasco's responsibility to maintain the dock levelers throughout the course of the relationship that existed between Kasco and its lessee, Miles. The trial court entered summary judgment against Hernandez on all theories pled.

II. STANDARD OF REVIEW

In reviewing the entry of a summary judgment, this Court must determine whether the successful movant in the trial court carried its burden of showing that there is no genuine issue of a material fact and that it is entitled to summary judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). A summary judgment that disposes of the entire case is proper only if, as a matter of law, the non-movant could not succeed upon any of the theories pled. Houston Building Service, Inc. v. American General Fire & Cas. Co., 799 S.W.2d 308, 309 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

In deciding whether or not there is a disputed fact issue which would preclude the entry of a summary judgment, evidence favorable to the non-movant is to be taken as true, and in that connection, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49.

III. THEORIES OF RECOVERY

A. Negligence

In its motion for summary judgment, Kasco claimed it had no duty to maintain the dock levelers and, as a consequence, could not be liable for negligence. According to Kasco, no duty exists under Texas law because a landlord is not liable for defects in the premises unless the landlord specifically agrees to repair such defects. ² Furthermore, Kasco asserts that even if it owed a duty to Hernandez, Kasco did not act negligently because the sole cause of Hernandez's injury was his misuse of the dock leveler.

The trial court's judgment did not specify the particular grounds for granting summary judgment. As a consequence, on appeal, Hernandez must establish that each of the independent arguments advanced in Kasco's motion is insufficient to support the judgment. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.--El Paso 1983, no writ).

Kasco's interpretation of existing Texas law, that a landlord is not liable for defects in the premises unless there is a specific agreement to repair such defects, is generally correct. Indeed, a landlord who has relinquished control of the leased premises is not liable for personal injuries to his tenant's employees caused by defects in the premises. Katz v. Southwestern Scrap Materials Co., 412 S.W.2d 685 (Tex.Civ.App.--Dallas 1967, no writ). A landlord, however, will be liable for personal injuries if the landlord covenants to make repairs.

In the instant case, it is undisputed that Kasco unequivocally relinquished control of the premises to Miles. In his response to Kasco's motion for summary judgment, as well as on appeal, Hernandez argues that Kasco is liable because their written lease agreement contains a specific covenant to repair. In particular, Hernandez asserts that Article V of the lease affirmatively places the duty of repair on Kasco.

Article V, § 5.01 of the lease states:

Lessee shall maintain the leased premises, except for landscaping and exterior grounds, exterior walls, foundation and the roof in a condition fit for their intended use and shall make all necessary repairs occasioned by its negligent use or otherwise.

In addition to this provision, Section 5.02(g) states that Kasco shall provide the "[f]loors, walls and ceilings in good repair at the time of commencement of the Lease." Hernandez asserts that these two provisions equate to a covenant to repair the dock levelers. According to Hernandez, the dock levelers are fixtures and such fixtures comprise part of the exterior walls and floors of the leased premises, which Kasco covenanted to repair. Such an assertion raises two significant issues of material fact. The first issue involves the question of whether the dock leveler is a fixture. If the dock leveler is a fixture, the second issue concerns the interpretation of Sections 5.01, 5.02 and 6.01 of the lease agreement.

A fixture is personal property that has lost its separate character and becomes part of the realty because it is so attached to the realty that it cannot be removed without materially damaging the property. Houston Building Service, Inc., 799 S.W.2d at 311. In order to determine whether the dock levelers are fixtures, a court must consider the following three factors:

the mode and sufficiency of annexation of the dock levelers, either real or constructive;

the adaptation of the dock levelers to the use or purpose of the realty; and

the intention of Kasco, the party who annexed the dock levelers to the real property.

Logan v. Mullis, 686 S.W.2d 605, 607 (Tex.1985). Consideration of these factors necessarily involves a question of fact.

Kasco asserts that even if the dock levelers are fixtures, summary judgment is still proper. To support this argument, Kasco relies on the language employed in Sections 5.01, 5.02 and 6.01 of the lease agreement. In particular, Kasco argues that Sections 5.01 and 5.02 fail to expressly include any reference to fixtures. Section 6.01, however, specifically states that if the lessee adds fixtures to the leased premises, lessee "agrees to hold Lessor harmless from any claims that may be made against such ... fixtures by any third person."

Kasco's argument regarding Section 6.01 is easily dismissed because the language of Section 6.01 only contemplates fixtures added to the realty by Miles. As a consequence, this section is inapplicable to the facts of this case because it was Kasco who added the dock levelers to the leased premises prior to Miles' tenancy. In regard to Sections 5.01 and 5.02, an issue of material fact is presented because both provisions are susceptible to two different constructions. For example, it is reasonable to construe "exterior walls" and floors in such a way as to either include or exclude fixtures attached to such realty.

We find that Sections 5.01 and 5.02 can be construed in different ways because both provisions are ambiguous in regard to the meaning of exterior walls and floors. Hillhaven, Inc. v. Care One, Inc., 620 S.W.2d 788 (Tex.App.--Fort Worth 1981, writ ref'd n.r.e.). The Texas Supreme Court has stated that when an ambiguity exists, summary judgment is improper because the mere interpretation of the ambiguous language becomes a fact issue. Coker v. Coker, 650 S.W.2d 391 (Tex.1983). Consequently, the trial court erred in granting summary judgment on the premise that Kasco had no duty to repair the dock levelers.

In its motion for summary judgment, Kasco also asserted that there was no evidence to demonstrate negligence. In response, Hernandez's summary judgment controverting proof contained an affidavit of an expert who testified as to the condition of...