Irma K. Ortega v. Ernest Dixon Murrah, D/B/A Murrah Properties
01-14-00651-CV
| Tex. App. | Nov 17, 2016Background
- Ortega leased a residential unit from Murrah; he provided a phone number and told her to call for repairs.
- Beginning in October 2011, Ortega’s husband repeatedly called to report a leak under the kitchen sink; Ortega never gave written notice.
- In January 2012 the sink plumbing gave way, water flooded the kitchen floor, and Ortega later slipped on a still-damp floor, breaking her leg.
- Ortega sued Murrah for negligence/premises liability; Murrah moved for summary judgment arguing no duty to repair or, alternatively, lack of causation.
- The trial court granted summary judgment for Murrah; Ortega appealed.
- The court of appeals affirmed, holding Murrah owed no duty to repair under the lease, any oral modification, or Tex. Prop. Code § 92.052.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written lease imposed a duty on Murrah to repair plumbing | Ortega: Lease language and listed tenant repair obligations imply landlord is responsible for items not listed | Murrah: Lease explicitly places maintenance and certain repair costs on tenant; no landlord duty appears | Held: No duty to repair arose from the lease; lease language places responsibility on tenant |
| Whether an oral promise created an enforceable duty to repair | Ortega: Murrah gave a business card and told them to call; this was an oral undertaking to repair | Murrah: Any oral modification is unenforceable absent consideration; lease requires written amendments | Held: No enforceable oral modification—Ortega produced no evidence of new consideration |
| Whether Tex. Prop. Code § 92.052 creates an independent duty actionable in personal-injury suits | Ortega: Section 92.052 requires landlords to repair conditions affecting health/safety and thus creates landlord duty | Murrah: § 92.052 governs landlord-tenant repair disputes, not common-law personal-injury liability | Held: § 92.052 does not create an independent duty for personal-injury claims; Timberwalk controls |
| Waiver / estoppel of notice requirement | Ortega: Murrah’s conduct (card, phone number, verbal agreement) waived or estops enforcement of written notice provision | Murrah: No duty exists to begin with; waiver/estoppel irrelevant | Held: Court declined to reach waiver/estoppel as outcome turned on absence of duty to repair |
Key Cases Cited
- Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) (contract interpretation focuses on written language)
- Flynn v. Pan Am. Hotel Co., 183 S.W.2d 446 (Tex. 1944) (lessor not obligated to repair absent agreement)
- Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227 (Tex. 1986) (oral contract modification requires meeting of minds and consideration)
- Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) (Tex. Prop. Code subchapter governing repairs does not apply to personal-injury liability)