Opinion
No. 05-02-00793-CV.
Opinion Filed March 24, 2003.
Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-99-02924-E.
AFFIRMED.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
MEMORANDUM OPINION
After a trial before the court on their premises liability claims, Melanie A. Tillery and Dale B. Tillery, As Next Friend of M'Lynn C. Tillery, a minor, (Tillery) appeal the trial court's take-nothing judgment in favor of appellee Trans Texas Investment Properties-V, Ltd. (Trans Texas). Tillery generally contends the trial court erred in its determination that Trans Texas had no control over the premises and, therefore, owed no duty to Tillery. For the reasons set out below, we affirm the trial court's judgment.
On September 11, 1998, M'Lynn Tillery and her mother attended a birthday party at an amusement facility located in a retail shopping center in Mesquite. M'Lynn was in the restroom on the premises when a sink in which she was washing her hands fell from the wall, injuring her leg. At the time of M'Lynn's injury, the premises was owned by Trans Texas and leased to Interactive Resources and Technologies, Inc. (Interactive). Tillery filed this lawsuit against Interactive, Trans Texas, and others seeking damages for M'Lynn's injury. Although both Interactive and Trans Texas filed answers, Interactive did not appear for trial. After a bench trial on Tillery's claims against Trans Texas, the trial court signed a final judgment ordering Tillery take nothing from Trans Texas and awarding Tillery damages against Interactive. In its findings of fact and conclusions of law, the trial court determined the restroom and sink in question were (1) totally contained within the premises leased to Interactive, (2) not for the common use of any other lessee in the building, (3) not designated as a "common area" as that term is defined in the lease, and (4) not inspected, controlled, or maintained by Trans Texas. Tillery appeals, generally challenging the trial court's findings related to Trans Texas's lack of control over the restroom and/or sink.
Where, as here, a party with the burden of proof attacks adverse fact findings, he must demonstrate that the matters were established as a matter of law or that the findings were against the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When reviewing a "matter of law" issue, we search the record for evidence to support the finding of fact, ignoring all contrary evidence. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If no evidence supports the finding, we examine the record to determine whether the contrary proposition is established as a matter of law. Id. When a party challenges a finding as against the great weight and preponderance of the evidence, we examine the entire record and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Generally, a lessor has no duty to tenants or their invitees for dangerous conditions on the leased premises. See Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). There are several recognized exceptions to this general rule, however, including: (1) where a lessor makes a negligent repair; (2) when a lessor conceals defects on the leased premises of which it is aware; and (3) where a lessor retains control over the portion of the premises where the defect or unsafe condition caused the injury. Id. Tillery argues the third exception applies here. Specifically, Tillery asserts certain express lease provisions, as well as the implied warranty of suitability establish, as a matter of law, that Trans Texas retained control over the restroom and/or sink.
In issues one through five, Tillery generally argues the lease between Interactive and Trans Texas specifically provides that restrooms were a "common area" over which Trans Texas retained sole management and control or, alternatively, the lease was ambiguous and the trial court erred in failing to resolve the ambiguity consistent with the restroom being a common area.
Whether a lease is ambiguous is a question of law for the court. See Heritage Res., Inc. v. Nationsbank, 939 S.W.2d 118, 121 (Tex. 1996). A lease is ambiguous when its meaning is uncertain, doubtful, or reasonably susceptible to more than one interpretation. See id. After reviewing the entire lease and construing the various provisions, we have concluded the lease is unambiguous and does not include the restroom where M'Lynn was injured as a common area.
As specified in paragraph 6 of the lease:
The "common area" is the part of the center designated by Lessor from time to time for the common use of all Lessees, including among other facilities, parking areas, sidewalks, landscaping, curbs, landing areas, private streets and alleys, lighting facilities, hallways, malls, restrooms and other areas and improvements provided by Lessor for the common use of all Lessees. . . .
Tillery argues that because the term "restrooms" is included in the list of common areas, the restroom where M'Lynn was injured is necessarily a common area. We disagree. The mere fact that restrooms are mentioned in the paragraph addressing common areas does not transform every restroom in the building into a common area, irrespective of whether it is contained within the leased premises and for the exclusive use of a particular tenant. Such an interpretation is unreasonable and contradicts the plain meaning of a common area as expressed in the lease. As we construe the lease, it is clear only specified facilities provided by the Lessor for the common use of all lessees would qualify as a common area. The lease and other evidence at trial established the restroom in question was entirely within the premises leased to Interactive. The restroom was not identified as a common area on Exhibit B to the lease, which denoted the leased premises and specified certain common areas. Moreover, there was uncontroverted evidence that the restroom in question was for the exclusive use of Interactive, and no other building tenant had access to the restroom. In fact, there was testimony that the restroom was actually constructed by the previous tenant, not Trans Texas. Based on the record before us, we reject Tillery's proposed lease interpretation that would render a restroom wholly within the premises leased to a particular tenant and used exclusively by that tenant as a common area. We resolve issues one through five against Tillery.
Under issues six through thirteen, Tillery contends the sink which fell and injured M'Lynn was under the control of Trans Texas. To support this position, Tillery relies on clauses in the lease providing: (1) Trans Texas promised to make "such repairs as may be deemed necessary by Lessor for normal maintenance operations," (2) Interactive was only obligated to repair damage caused by Interactive, its agents, employees, invitees, or visitors, and (3) certain furniture, fixtures, and equipment in the leased premises shall remain the property of Trans Texas throughout the lease term. These lease provisions, Tillery argues, reflect Trans Texas's control over the sink, thus creating a duty on the part of Trans Texas to inspect the sink and plumbing system. We disagree.
There is no lease provision specifically allocating the responsibility of inspecting, maintaining, or repairing the sink in question. Moreover, the lease provisions cited by Tillery are not evidence that Trans Texas retained control over the sink while the premises was leased to Interactive. Instead, the lease specifically provides that Trans Texas undertook only to maintain the structural soundness of the roof, foundation, and exterior walls of the premises and was not required to make any other repairs on the premises except those that it deemed necessary for normal maintenance operations. There is nothing in the record to support a finding that the sink in question was necessary for normal operations of the amusement facility. Certainly Interactive could have continued to do business as an amusement facility without the sink. We likewise find the lease provision with respect to title to the furniture, fixtures, and equipment does not establish that Trans Texas controlled the sink. Although Trans Texas may have had ownership rights in the sink, Interactive had possession of the sink through the lease. See Endsley, 926 S.W.2d at 285 (general rule for lessor liability focuses on relinquishment of possession to the tenant.)
Tillery also contends the warranty of suitability implied in commercial leases created a duty as a matter of law on the part of Trans Texas with respect to an invitee such as Tillery. The implied warranty of suitability in commercial leases affirms that the premises is suitable for their intended commercial purpose. Coleman v. Rotana, 778 S.W.2d 867, 870 (Tex.App.-Dallas 1989, writ denied). In essence, the landlord effectively warrants there are no latent defects in the facilities that are vital to the intended use of the premises and that the essential facilities will remain in a suitable condition. Id. Tillery argues that because restrooms were essential to Interactive's use of the premises as an amusement facility, Trans Texas owed a duty for latent defects such as the sink in question. There is nothing in the record, however, to establish that the condition of the sink made the premises unsuitable for its intended commercial purpose. Based on the record before us, we disagree the implied warranty of suitability created a duty on the part of Trans Texas with respect to the alleged dangerous condition of the sink.
Because there was legally and factually sufficient evidence to support the trial court's findings, we conclude the trial court did not err in its determination that Trans Texas did not control the restroom and sink and therefore owed no duty to Tillery. Our disposition of this issue makes it unnecessary to address Tillery's fourteenth and fifteenth issues addressing the doctrine of res ipsa loquitor and causation.
We affirm the trial court's judgment.