Brenham Housing Authority v. Margaret Davies

Reversed and Rendered and Opinion filed January 27, 2005

Reversed and Rendered and Opinion filed January 27, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00286-CV

_______________

BRENHAM HOUSING AUTHORITY, Appellant

V.

MARGARET DAVIES, Appellee

______________________________________________________

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 33,026

______________________________________________________

O P I N I O N

In this

interlocutory appeal, appellant, the Housing Authority of the City of Brenham,

Texas, a/k/a/ Brenham Housing Authority ( A BHA @ ) appeals from the denial of its plea

to the jurisdiction. BHA contends that

the trial court erred in denying its plea to the jurisdiction on the grounds

that (1) the Texas Tort Claims Act does not waive immunity from Davies = s premises defect claim, (2) the

Texas Tort Claims Act does not waive immunity from Davies = s breach of contract and breach of

warranty of habitability claims, and (3) the Texas Tort Claims Act does not

waive immunity from Davies = s strict products liability claim. We will not consider whether the trial court

has jurisdiction over Davies = s breach of contract, breach of warranty of habitability, and

strict products liability claims because they were not addressed in BHA = s plea to the jurisdiction. However, we reverse and render judgment

granting BHA = s plea to the jurisdiction as to

Davies = s premises defect claim. [1]

I. Background

In March

1997, Margaret Davies became a tenant of Northside Terrace Apartments ( A Northside Apartments @ ) located in Brenham, Texas, and she

resided there until November 1999. She

again became a tenant in January 2000 and lived there until February 2003. Northside Apartments is owned by Northside Terrace,

Ltd. and managed by BHA.

Davies

alleges that during her tenancy at Northside Apartments, she began experiencing

various physical and mental ailments.

She contends that she did not know the cause of these problems until

January 2003, when the City of Brenham Gas Department inspected her hot water

heater and discovered that it was emitting carbon monoxide fumes into her

apartment. A report signed by the gas

inspector indicates that the vent pipe was not properly connected to the top of

the hot water heater, and this defect allowed carbon monoxide fumes to escape

into the apartment. The hot water heater

was removed and a new one installed.

Davies alleges that shortly after the replacement of the hot water

heater, she was diagnosed with Chronic Carbon Monoxide Poisoning.

Davies

subsequently filed suit against BHA as well as Northside Terrace, Ltd., NHB

Development Corp., State Industries, Inc., and Unknown Defendants 1-25 on

theories of negligence, breach of warranty of habitability, breach of contract,

and strict products liability. BHA filed a plea to the jurisdiction, asserting

that immunity had not been waived under the Texas Tort Claims Act as to the

premises defect claim. The trial court

entered an order denying the plea to the jurisdiction, and BHA filed this

interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004 B 05).

II. Standard

of Review

A plea

to the jurisdiction challenges the trial court = s authority to determine the subject matter

of the cause of action. Texas Parks

& Wildlife Dep = t. v. Garrett Place, Inc. , 972 S.W.2d 140, 142 (Tex. App. C Dallas 1998, no pet.). Because subject matter jurisdiction presents

a question of law, we review the trial court = s decision de novo . Rylander v. Caldwell , 23 S.W.3d 132,

135 (Tex. App. C Austin 2000, no pet.). In deciding a plea to the jurisdiction, we

may not weigh the merits of the claim, but must consider only the plaintiff = s pleadings and the evidence

pertinent to the jurisdictional inquiry.

Texas Natural Res. Conservation Comm = n v. White , 46 S.W.3d 864, 868 (Tex. 2001); Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547 , 554 B 55 (Tex. 2000). When we consider a trial court = s order on a plea to the

jurisdiction, we construe the pleadings in the plaintiff = s favor and look to the pleader = s intent. See Texas Ass = n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex.

1993). In order to prevail, the party

asserting the plea must show that, even if all the allegations in the plaintiff = s pleadings are taken as true, there

is an incurable jurisdictional defect apparent from the face of the pleadings,

rendering it impossible for the plaintiff = s petition to confer jurisdiction on

the trial court. Rylander , 23

S.W.3d at 135 .

III. Plea

to the Jurisdiction

The

State, its agencies, and its subdivisions generally enjoy immunity from suit

unless immunity has been waived by the Texas Tort Claims Act. See Dallas County Mental Health &

Retardation v. Bossely , 968 S.W.2d 339, 341 (Tex. 1998). Unless immunity is waived, the trial court

lacks jurisdiction and is without authority to decide the case. See Texas Ass = n of Bus. , 852 S.W.2d at 443 (holding that

subject matter jurisdiction is essential to a court = s authority to decide a case).

In this

case, BHA is an agency of the State that generally enjoys immunity from

suit. See Tex. Loc. Gov = t Code Ann.

392.006 ( Vernon 1999). [2] Accordingly, it was Davies = s burden to plead facts which, taken

as true, would invoke the trial court = s jurisdiction.

A.

Trial Court = s

Jurisdiction Over Davies = s

Premises Defect Claim

1. Duty of

Care

In its

first issue, BHA contends that the Texas Tort Claims Act limits its duty of

care to Davies to the duty that a private landowner owes to a licensee. BHA contends the trial court erred in denying

its plea to the jurisdiction with respect to Davies = s premises defect claim because

Davies failed to plead or prove facts under which BHA would be liable to a

licensee. Conversely, Davies contends

she should be accorded the status of an invitee under the Texas Tort Claims Act

because she paid rent to BHA. BHA = s argument as to its duty of care is

centered on a construction of Sections 101.021(2) and 101.022(a) of the Texas

Tort Claims Act. Section 101.021(2) of

the Texas Tort Claims Act waives

immunity for personal injuries caused by a condition of real property A if the governmental unit would, were

it a private person, be liable to the claimant according to Texas law. @

Tex. Civ. Prac. & Rem. Code

Ann. ' 101.021(2) (Vernon 1997). However, with respect to ordinary premises

defects, Section 101.022(a) limits a governmental unit = s duty of care to the duty that a

private person owes to a licensee, unless the claimant A pays for use of the premises. @

Tex. Civ. Prac. & Rem. Code

Ann. ' 101.022( a)

( Vernon 1997).

A

licensee is required to plead and prove the following: (1) the owner had actual

knowledge of the defective condition; (2) the licensee had no knowledge of the

defective condition; (3) the owner failed to exercise ordinary care to protect

the licensee from danger; and (4) such failure was a proximate cause of injury

to the licensee. State Dep = t of Highway & Pub. Transp. v.

Payne , 838 S.W.2d

235, 237 (Tex. 1992). Thus, a licensee

must show that the landowner had actual knowledge of the defective

condition. Id. In the present case, Davies does not

allege that BHA had actual knowledge of the purported defect in the water

heater. Therefore, BHA argues that under

the licensee standard, immunity is not waived because BHA would not be liable

to Davies if it were a private person. See

Tex. Civ. Prac. & Rem. Code Ann.

' 101.021(b) (providing that immunity

is waived to the extent that a private person would be liable to the claimant

according to Texas law).

BHA

argues that Davies = s payment of rent does not constitute the type of payment A for use of the premises @ contemplated by Section

101.022(a). BHA thus contends that

Section 101.022(a) limits BHA = s duty of care to the duty that a private person owes to a

licensee. To support its position, BHA

argues that the phrase A pays for use of the premises @ in Section 101.022(a) means payment

for mere temporary use of a facility as opposed to payment for exclusive

occupancy and control of an apartment.

However, BHA cites no authority limiting Section 101.022(a) to payment

for temporary use of a premises. BHA = s argument cannot overcome the plain

language of the statute. We must give

effect to a statute = s common meaning. Tex. Gov = t Code Ann. ' 311.011 ( Vernon 1998). We may not add or subtract from the statutory

language. Texas Dep = t of Public Safety v. Butler , 960 S.W.2d 375, 377 (Tex. App. C Houston [14th Dist.] 1998, no pet.). Rather, we must take a statute as we find it

and must interpret it as the words in their plain sense fairly sanction and

will clearly sustain. St. Luke = s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997).

In

Section 101.022(a), there is no qualification on the nature of use of a

premises by a claimant, nor any limitation on the duration of such use. Had the legislature intended to qualify

Section 101.022(a) to a payment for use of temporary duration, it could have

done so. Under the plain language of the

statute, by remitting money in consideration for occupancy of the apartment,

Davies paid for use of the premises.

Accordingly, Section 101.022(a) does not limit BHA to the licensee

standard of care. However, payment for

use does not automatically confer the invitee standard asserted by Davies.

An

invitee must plead and prove the following: (1) a condition of the premises

posed an unreasonable risk of harm to her; (2) the owner knew or reasonably

should have known of the defective condition; (3) the owner failed to exercise

ordinary care to protect the invitee from danger; and (4) such failure was a

proximate cause of the injury to the invitee.

Payne , 838 S.W.2d at 237 .

Under this standard, the invitee must only show that the landowner knew

or reasonably should have known of the defective condition. Id .

In her live petition, Davies alleges that BHA reasonably should have

known of the purported defect in the hot water heater. Thus, Davies contends (taking her pleadings

as true) that under an invitee standard, BHA would be liable to her if it were

a private person; therefore, her pleadings are sufficient to support waiver of

BHA = s immunity. Accordingly, she contends the trial court has

jurisdiction.

As

authority, Davies cites Thompson v. City of Corsicana Housing Authority ,

57 S.W.3d 547 (Tex. App. C Waco 2001, no pet.).

In Thompson , the plaintiff paid the Corsicana Housing Authority

$25 per month in rent. Id . at 553.

The plaintiff and an acquaintance were injured when the roof of the

apartment collapsed while they were sitting in the apartment. Id . at 550. The court concluded that because the plaintiff

paid the housing authority monthly rent for occupancy of the apartment, she was

entitled to the status of an invitee. Id .

at 553. In reaching this conclusion, the

Thompson court cited several cases holding that a claimant who pays for use

of the premises is under a duty of care owed to an invitee. See id . (citing Texas Parks &

Wildlife Dep = t. v. Davis , 988 S.W.2d 370, 374 (Tex. App. C Austin 1999, no pet.); University

of Tex. Med. Branch v. Davidson , 882 S.W.2d 83, 85 (Tex. App. C Houston [14th Dist.] 1994, no writ); M.D.

Anderson Hosp. & Tumor Inst. v. Felter , 837 S.W.2d 245, 247 (Tex. App. C Houston [1st Dist.] 1992, no

writ)). However, we find that the cases

relied upon by the court in Thompson are not controlling in the

landlord-tenant context.

In each

of the cases relied upon by the Thompson court, the claimant was deemed

to be an invitee because he paid a fee for entry onto a premises controlled by

the government. However, in the instant

case, Davies = s right to enter and remain on the

premises was not derived from permission granted or an invitation extended by

the housing authority. Rather, Davies = s right of possession is derived from

a lease, giving her the legal status of a tenant. See, generally, Kukis v.

Newman , 123 S.W.3d 636, 639 (Tex. App. C Houston [14th Dist.] 2003, no pet.)

(distinguishing between owner/invitee and lessor/lessee relationships). The duty of care that a landowner owes to a

tenant for dangerous conditions inside of the leased premises is different from

the duty of care that a landowner owes to an invitee, notwithstanding the

tenant = s payment for use of the leased

premises. See Johnson Co. Sheriff = s Posse v. Endsley , 926 S.W.2d 284, 285 (Tex. 1996)

(holding that lessor generally has no duty to tenant for dangerous conditions

on the leased premises); Montelongo v. Goodall , 788 S.W.2d 717, 718

(Tex. App. C Austin 1990, no writ) (same).

In addition

to the distinction in the case law cited above, we also examine the purpose of

the Texas Torts Claims Act. In Davidson ,

this court recognized that Section 101.022(a) generally A limits the State = s liability for premises defects

under Section 101.021 by imposing upon the State the same duty of care a

private landowner owes a licensee. @ 882 S.W.2d at 84 . Section 101.022(a)

is not intended to impose a new duty upon the State. See, generally, City of Denton v. Page ,

701 S.W.2d 831, 834 (Tex. 1986) (finding that the Act does not create new

duties; it simply waives immunity under circumstances in which a private person

would be liable).

Interpreting

Section 101.022(a) to mean that a housing authority that owns or operates an

apartment complex owes the invitee duty of care to every tenant who pays rent

would expose housing authorities to greater liability than private landowners

under Texas law. Section 101.022(a)

would no longer be a limitation on the State = s duty of care, rather it would

impose a new duty upon the State. While

private landowners owe a very limited duty to their tenants for dangerous

conditions inside the leased premises, housing authorities would, under the

theory urged by Davies, owe the invitee duty of care to every tenant who pays

rent. This theory contravenes the

Legislature = s clear directive in Section

101.021(2) that immunity is waived only to the extent that a private person

would be liable to the claimant under Texas law. Accordingly, we do not construe Section

101.022(a) to mean that BHA owed Davies the invitee duty of care simply because

she paid rent.

Thus,

while the parties focus their analysis on whether Davies is a licensee or an

invitee, we find that neither is the proper standard under the facts of this

case. If BHA owed a duty to Davies, it

arose out of her status as a tenant at Northside Apartments.

2. Duty of Care Applicable to Facts

BHA is

not the owner or occupier of Northside Apartments, but is the agent of the

owner, Northside Terraces, Ltd., who is the lessor. Generally, the lessor transfers possession

and control of the leased premises to the tenant, and therefore, owes no duty

to the tenant for dangerous conditions on the leased premises. Endsley , 926 S.W.2d at 285 ; Prestwood

v. Taylor , 728 S.W.2d 455, 460 (Tex. App. C Austin 1987, writ ref = d n.r.e.). However, Davies asserts that in this case,

BHA maintained control over her apartment by virtue of a contractual duty to

maintain and repair the leased premises.

A lessor who retains control over a portion of the leased premises is

charged with the duty of ordinary care in maintaining the portion retained so

as not to harm the tenant. Parker v.

Highland Park, Inc. , 565 S.W.2d 512, 515 (Tex. 1978); Brown v. Frontier

Theatres, Inc. , 369 S.W.2d 299, 303 (Tex. 1963). However, a lessor = s contractual right to enter the

premises to make repairs and alterations is not a reservation of control over a

part of the premises. Shell Oil Co.

v. Kahn , 138 S.W.3d 288 , 295 B 97 (Tex. 2004); De Leon v. Creely ,

972 S.W.2d 808 812 B 13 (Tex. App. C Corpus Christi 1998, no pet.).

To

support her position that BHA had control over her apartment, Davies relies

upon a provision in the Management Agreement between BHA and Northside Terrace,

Ltd. The relevant provision of the

Management Agreement required BHA to A cause the project to be maintained

and repaired in accordance with the Management Plan and Local codes, and in a

condition at all times acceptable to [Northside Terrace, Ltd.]. @

We do not construe this provision as a reservation of control over

Davies = s apartment unit so as to subject BHA

to liability under a premises defect theory.

This provision supports the contention that BHA has a contractual

obligation to maintain the apartment complex on behalf of Northside Terrace,

Ltd. However, this provision does not

establish BHA = s control over the inside of Davies = s apartment beyond a right to enter

and make repairs.

We note

that Davies does not allege that the lease contract between Davies and BHA

imposed a duty upon BHA to inspect the inside of Davies = s apartment. However, even assuming that the lease

contract imposed such a duty upon BHA, we find that the lease contract cannot

serve as a basis to impose liability upon BHA.

Section 392.006 of the Local Government Code provides that a housing authority

is subject to A all landlord obligations and tenant

remedies, other than a suit for personal injuries , as set forth in any

lease or rental agreement and in Chapters 24, 54, 91, and 92 of the Property

Code. @

Tex. Loc. Gov = t Code Ann. ' 392.006 (emphasis added). While Section 392.006 is not a model of

clarity, it appears to limit a housing authority = s waiver of immunity from personal

injury suits for any obligation arising under a lease agreement. Because Davies = s suit is for personal injuries, we

conclude that the legislature has not waived BHA = s immunity from suit for any

obligations BHA may have had under the lease agreement. [3] Accordingly, we hold Section 392.006 protects

BHA from liability for Davies = s personal injury claim.

Accordingly,

we sustain BHA = s first issue, and find that Davies = s pleadings fail to establish that

BHA = s immunity is waived with respect to

Davies = s premises defect claim. [4]

C. Trial Court = s Jurisdiction

Over Davies = s Other

Claims

In its

third and fourth issues, BHA argues for the first time on appeal that the trial

court also lacked jurisdiction over Davies = s breach of contract, breach of

warranty of habitability, and strict products liability claims. However, BHA = s argument in its plea to the

jurisdiction was based solely on its contention that governmental immunity barred

Davies = s premises defect claim.

We have

jurisdiction to review the trial court = s interlocutory order because it A grants or denies a plea to the

jurisdiction by a governmental unit as defined in Section 101.001 [of the Texas

Tort Claims Act]. @ See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014( a)(8). Under Section 51.014(a)(8), our jurisdiction

is limited to a review of the trial court = s interlocutory order on a plea to

the jurisdiction. Id .

BHA,

nonetheless, contends that we should consider the trial court = s jurisdiction over Davies = s other claims because jurisdiction

cannot be waived and can be raised for the first time on appeal. See Denton County v. Huther , 43 S.W.3d

665 , 667 n.2 (Tex. App. C Fort Worth 2002, no pet.).

We acknowledge that jurisdiction cannot be waived and can be raised for

the first time on appeal. However,

Section 51.014(a)(8) gives us jurisdiction over this interlocutory appeal for the

limited purpose of reviewing the trial court = s interlocutory order on a plea to

the jurisdiction. Because our

jurisdiction in this interlocutory appeal is limited to review of the trial

court = s order, we must confine our review

to the claims addressed in the plea to the jurisdiction. City of Dallas v. First Trade Union Sav.

Bank , 133 S.W.3d 680 , 686 B 87 (Tex. App. C Dallas 2003, pet. filed).

Accordingly, we reach no decision on whether BHA = s governmental immunity is waived for

Davies = s breach of contract, breach of

warranty of habitability, and strict products liability claims.

IV. Conclusion

In sum,

we will not consider whether the trial court has jurisdiction over Davies = s breach of contract, breach of

warranty of habitability, and strict products liability claims because they

were not addressed in BHA = s plea to the jurisdiction.

However, we conclude that the trial court erred in denying BHA = s plea to the jurisdiction as to

Davies = s premises defect claim. Therefore, we reverse the trial court = s order and render judgment granting

the plea to the jurisdiction as to Davies = s premises defect claim.

/s/ Charles

W. Seymore

Justice

Judgment rendered and Opinion filed

January 27, 2005.

Panel consists of Chief Justice

Hedges and Justices Anderson and Seymore.

Publish C Tex.

R. App. P. 47.2(b).

[1] Davies alleged

a number of different acts of negligence.

However, her injuries resulted from a defective condition of the hot

water heater, which is an appurtenance to the apartment itself. Therefore, her allegations of negligence are

properly characterized as a premises defect claim. See University of Texas Med. Branch v.

Davidson , 882 S.W.2d 83 , 85 B 86 (Tex. App. C Houston

[14th Dist.] 1994, no writ).

[2] While the

terms “sovereign immunity” and “governmental immunity” are often used

synonymously, there is a distinction.

Sovereign immunity refers to the State = s

immunity from suit and liability, and it protects the State and its

divisions. Wichita Falls State Hosp.

v. Taylor , 106 S.W.3d 692 , 694 n.3 (Tex. 2003). Governmental immunity protects political

subdivisions of the State, including counties, cities, and schools. Id .

[3] In Thompson

v. City of Corsicana Housing Authority , the court was faced with a similar

issue. In that case, the tenant sought

to impose liability upon the housing authority based upon a lease provision

requiring the housing authority to keep the premises in a condition safe for

habitation. 57 S.W.3d at 588 . Relying on

Section 392.006, the court concluded that because the tenant sought only

personal injury damages, the housing authority could not be held liable for

violation of the lease provision. Id.

at 558 B 59. In Thompson ,

the tenant framed her complaint as a breach of contract claim, as opposed to a

premises defect claim. Id.

[4] Because we

resolve this issue in favor of BHA, we need not address BHA = s second issue.