*1 act false, misleading, deceptive or a mitted a represented that the Council repair; modify the we engineer investigate, practice. would or structural the award than a to delete performed more court’s this evaluation af- request; $20,000 damages initial year exemplary after the Durhams’ in of based the Council’s decision was modified. firm as animosity the Durhams. personal toward to the light most favorable
Viewed
verdict, indi or all of these actions some the Council’s refusal
cated disingenuous, did not address
floor was in a commendable complaint Durhams’
manner, decep arguably engaged in ac none of these
tive conduct. WILSON, Appellant that the representation tions constituted a rights or involves Declaration “confers Moreover, the not have or involve.” did PRESBYTERIAN BRAEBURN “false, misleading, decep or definition CHURCH, Appellee. jury practice” tive act or submitted to No. 14-06-00215-CV. not include other conduct outlined 17.46(b)
in of the DTPA “uncon section or Court of general. scionable” actions Dist.). (14th 17.46(b) (Vernon § Bus. & Com.Code Ann. 27, 2007. non Supp.2007) (containing extensive and “false, misleading, list of or de practices” may ac ceptive acts DTPA); Tex.
tionable under Bus. & Com. 17.50(a)(3) (Vernon § Supp.
Code
2007) may (providing that a consumer “any DTPA action when uncon
maintain action is the
scionable or course action” Instead, damages). cause
producing very
trial court submitted a narrow defini “false, act misleading, deceptive
tion encompass that did not practice” Osterberg, conduct. See
above-cited Inc., 222 Eng’g Group, at CDI
S.W.3d at 548. sum, legally insuffi- that the support jury’s finding
cient false, mis- knowingly committed a
Council practice. act or
leading, deceptive
Therefore, we the Council’s fourth sustain
issue. $20,000 exempla- jury’s award of
ry solely on damages predicated knowingly com-
finding that the Council *2 sued injuries
Wilson Braeburn for she suffered when she wet slipped fell on a in a facility floor owned Braeburn. summary judgment, Braeburn moved for (1) asserting: to Wilson because she had actual knowledge of (2) condition; it acted reason- ably the leak wet; caused the floor to be it had duty to Wilson because her employer, (“NCI”), Head Start the leasehold- injury er of where the oc- curred, was in premises. court granted The trial Braeburn’s motion and entered a take-nothing judgment against Wilson’s claims. summary judgment
A traditional bemay granted if the and summary judg- motion ment evidence that there is genu- show moving ine of material fact and issue party judgment is entitled to as a matter expressly on the law issues set out any response. motion or Tex.R. Civ. 166a(e). reviewing In a summary judg- P. ment, we consider all evidence in nonmovant, in- light most favorable TX, Mestemaker, Houston, David K. every dulge inference nonmovant’s appellants. favor, and resolve doubts any against Goodyear motion. & Rubber Tire Co. Womac, Evelyn Derrington, Ailts Terry (Tex.2007). Mayes, 236 Walla, Douglas Martin and Neal David Where, here, summary judgment Kieval, Houston, TX, for appellees. specify order what if granted, may be affirmed YATES, Panel consists of Justices the theories advanced meritorious. SEYMORE, and EDELMAN.* Prostok, Browning v. MAJORITY OPINION disposition, As relevant to our Wilson EDELMAN, RICHARD H. Senior challenges summary
Justice. grounds that: Wilson’s premises liability her recovery not bar appeals en- Wilson created a fact issue Presbyterian tered in responsibility; acknowledged favor of Braeburn Braeburn (“Braeburn”) on grounds. problem Church various but failed to make the area safe; We reverse and remand. where the * sitting by assignment. Senior Justice Richard H. Edelman Braeburn, did not dem- tacting the service was controlled occurred onstrate as a NCI. reasonable care exercised to run a employed by Wilson is therefore disposition dition safe. Our *3 portion in a of Brae- Start Head Center of control. governed by the issue facility that NCI leased. Wilson’s that contends (the Although Braeburn in a
injury occurred kitchenette the leased part the kitchenette “kitchenette”) draining where water was the NCI, not to by lease does refer the bucket, conditioning air unit into a from an kitchenette, the and it is not clear from onto the splattering overflowing but was oth attached to the lease materials wet, the floor was and floor. Wilson knew summary judgment evidence whether er empty to into a the bucket is: of the leased part the kitchenette slipped and sink when she fell. con area that was under NCI’s exclusive As to a lessor relevant this trol; to a common area merely dangerous has a to tenants had access but which NCI of the that portions conditions that Although it is uncontested control.2 remain under the lessor’s control. See using room only entity the NCI was Khan, Oil Co. v. Shell the evi during operations, its hours of caused by an is Where not indicate whether this was dence does condition, a the lessor is liable for it such to use right had the exclusive because NCI care, if, by the exercise of reasonable or, alternatively, it then because Braeburn during lessor could have discovered the condition use it simply had no need to hours, can risk then and we make inferences and its unreasonable and made regard. More favor of Braeburn in this dangerous condition Id. safe. If over, control over to whatever extent obvious, is open condition or otherwise NCI and Brae- premises shifted between tenant, known this does dis times, Braeburn cited no burn at different duty, merely with the lessor’s pense establishing as a authority or evidence a res presents fact issue that had the exclusive ponsibility.1 responsibility to effect authority or three Of Braeburn’s for sum- necessary repairs to make condition judgment, cannot mary judg safe. Because Braeburn’s duty, arising on: lack affirmed based thus fail to dem ment motion knowledge dangerous from Wilson’s of the a of law that NCI onstrate as matter above, condition, because, as such noted the area where over not eliminate Braeburn’s existed, cannot be affirmed condition premises; duty as lessor of that Wilson’s issues basis. arising duty, from breach sustained, air having repeatedly contacted an condi- reversed, case remand and the is is tioning air service proceed court for further ed to the trial conditioner, because, above, a les- noted ings. duty is care to to exercise reasonable sor’s YATES, J., concurring. merely make the condition Inc., Park, hallway bor- on a kitchenette located 1. See (Tex.1978); used, Civ. Prac. as well classrooms that dered 33.002, (Vernon §§ 33.003 & Rem.Code room that not. Supp.2007). YATES, Justice, LESLIE B. did not. Admittedly, may seem awk concurring. ward to require an invitor who has not made a condition safe to warn an invitee of this, In a case such as the invitor’s even if the invitee is to an invitee is to either warn of the aware. that result is dictated dangerous condition or prem Parker, which unequivocally holds that an ises reasonably safe. See Bill’s Dollar invitee’s a dangerous condi Bean, Inc. v. 369 tion cannot alleviate the to warn.1 (Tex.App.-Houston [14th pet. Furr’s, Logan, Inc. v. writ) (re (Tex.App.-El Paso Braeburn did not meet its to make *4 jecting argument defendant’s that it owed merely by safe contacting the service com duty to plaintiff who knew of danger pany. I separately write to address Brae- because “a warning would have been su duty to warn. perfluous already to one who knew and appreciated danger,” stating that such Braeburn acknowledges gave that it theory “is an evocation of the old ‘no warnings argues duty that its to warn duty’ doctrine” that supreme court “was discharged by Ms. Wilson’s own abolished”). long “has since appreciation open of an that there is a danger.” obvious fact issue on question of Braeburn’s Park, Inc., 512, (Tex.1978), control of area. If Brae- Supreme Texas explicitly reject Court burn had the requisite right to control and ed the notion that an invitee’s knowledge duty thus a to warn or make of a dangerous condition can alleviate the not discharge Thus, here. I Rather, invitor’s to warn. the invi respectfully concur. tee’s is an issue of contributory negligence that does not affect the id.; warn. See Grey Drilling Co. v. Wolf
Boutte, 725, (Tex.App. 734-35 2004,
-Houston [14th by agr.); Dist.] vac. Eugene DIXON, Appellant, Gerrard Mickelsen, v. 409, Flint n. 2 (Tex.App.-Houston 1989, [1st Dist.]
writ). This court
clearly
has
held that an
Texas, Appellee.
STATE
invitor
satisfied its
when it warned an
No. 14-06-00351-CR.
dangerous condition,
invitee of a
even
Court of Appeals of
though the invitee
aware of it.
(14th Dist.).
See Bill’s Dollar
1. Braeburn relies on Summers v. Fort
duly
protect
Crockett
owes the invitee no
to warn or
Hotel, Ltd.,
(Tex.App.-
the invitee.”
the Summers court
denied),
Interests, Inc.,
Houston [1st
Halepeska
writ
relied on
v. Callihan
(Tex. 1963),
which the
First Court of
held that "if