Owens v. Dutcher, 2-81-019-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Before MASSEY; RICHARD L. BROWN; MASSEY
• Citation: 635 S.W.2d 208
• Parties: Ted OWENS, et ux., Christine Owens, Appellants, v. J. A. DUTCHER, Appellee.
• Docket Number: No. 2-81-019-CV,2-81-019-CV
• Decision Date: 03 June 1982

Page 208

635 S.W.2d 208 Ted OWENS, et ux., Christine Owens, Appellants,
v.
J. A. DUTCHER, Appellee. No. 2-81-019-CV. Court of Appeals of Texas, Fort Worth. June 3, 1982.
Rehearing Denied July 1, 1982.

Jacobs-Taylor-Cocanower, and S. C. Cocanower, Fort Worth, for appellants.

Thompson, Coe, Cousins & Irons, and Russell W. Schell, Dallas, for appellee.

Before MASSEY, C. J., and BROWN and JORDAN, JJ.

Page 209

OPINION

RICHARD L. BROWN, Justice.

This is an appeal by the Plaintiffs from a damage award by the court following a jury trial on a suit for property damages based on negligent tort.

We reverse and render.

Appellants (plaintiffs below) were tenants in a condominium unit in which a fire occurred causing extensive loss to their personal property.

Appellee (defendant below) was the owner of the condominium unit occupied by the appellants as lessees.

The fire began in the wiring which serviced an external light fixture in condominium "common elements" at the condominium known as Eastridge Terrace.

In addition to appellee, the appellants sued Eastridge Terrace Condominium Association, Joe Hill Electric Company, a class of owners of condominiums in Eastridge Terrace, and condominium developer, IHS-8 Ltd., for recovery of their damages. With the exception of appellee, all defendants had obtained a change of venue to Dallas County.

The case was tried before a jury which found that the light fixture in question was defective because of the lack of an insulating box in the exterior wall air space.

The jury further found that Eastridge Condominium Association knew the premises in question were unfit for habitation because of the absence of an insulating box at the light fixture and was negligent in failing to install an insulating box, both of which were found to have been proximate causes of the fire.

The jury found that the Association's negligence alone caused the fire which resulted in damage to the appellants' property in the amount of $69,150.00.

Following the jury verdict the trial court rendered judgment against appellee in the amount of $1,087.04, which represents appellants' damages multiplied by appellee's 1.572% pro rata undivided ownership in the common elements of the Eastridge Terrace Condominium.

An agreed statement of facts was filed with this court. The parties stipulated that the sole issue for determination is whether: the pro rata judgment rendered by the court is correct; or appellee is liable for the entire damages as appellants contend; or another rule of law should apply.

Appellants contend that the court erred in holding appellee liable only for the proportion of their damages that his undivided ownership in the common elements of the condominium bears to the total damages found by the jury.

Appellants base their argument on case law, which provides that members of an association are jointly and severally liable for tortious acts caused by the acts and omissions of the association in the use of property submitted by the members of the association to the control of the association. They cite Port Terminal Railroad Association v. Leonhardt, 289 S.W.2d 649 (Tex.Civ.App.-Fort Worth 1956, no writ).

The condominium concept in Texas is the ownership of two estates merged into one, a fee simple ownership or leasehold in the unit occupied and a tenancy in common in the common elements. 11 Hous.L.Rev...