Sylvia Arredondo v. Village on the Lake, Ltd and Votl I GP, Inc.

Affirmed and Opinion filed December 14, 2023.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-22-00169-CV

                     SYLVIA ARREDONDO, Appellant

                                       V.
     VILLAGE ON THE LAKE, LTD AND VOTL I GP, INC., Appellees

                   On Appeal from the 151st District Court
                           Harris County, Texas
                     Trial Court Cause No. 2020-40619

                                   OPINION

      Appellant Sylvia Arredondo (“Arredondo”) filed a lawsuit against appellees
Village on the Lake, LTD (“the Village”) and VOTL I GP (“VOTL”) for familial
status discrimination, breach of contract, constructive eviction, and breach of
warranty of quiet enjoyment. The Village filed a counterclaim for breach of lease.
The Village and VOTL filed a traditional and no-evidence motion for summary
judgment on Arredondo’s claims and on the Village’s counterclaim, which the trial
court granted. Arredondo appeals. We affirm.
                                 I.     BACKGROUND

      Arredondo signed a one-year lease beginning March 26, 2020, for a three-
bedroom apartment. Arredondo moved in with her eight-year-old daughter and
fourteen-year-old son, and Arredondo’s four-year-old twin boys came for Easter.1

      March 2020 was the unexpected start of the COVID-19 pandemic, resulting
in shutdowns and school closures. As a result, adults and children were suddenly
home fulltime. Arredondo’s downstairs neighbor had lived at the Village for five
months and had already complained about the previous tenants in Arredondo’s
apartment. This downstairs neighbor had documented her problems with the prior
tenants and had also previously complained to a parent about their children’s
“rambunctious” behavior outside her ground floor apartment.

      On Easter weekend, the downstairs neighbor started complaining about
Arredondo and her children. Specifically, she was upset at the children’s noise and
activity and contended that Arredondo and another parent did not properly control
their children. The neighbor wrote to the Village, stating that the grassy common
area had “become the playground for about 8 kids from sunup to sundown,” and
that Arredondo and her daughter disturbed her by tossing a football from the
common area to their balcony. The neighbor asked Arredondo if she could “stop
allowing the kids to run around and make so much noise.” Arredondo apologized
and explained that her little boys were active.

      On Easter Sunday, the neighbor was so disturbed by the children’s playing
that she left her apartment to calm herself. At 9:30 p.m. that night, the neighbor
sent an email to the Village’s manager, complaining that “the new tenants above
me and beside me are absolutely inconsiderate and have created an intolerable

      1
         Arredondo had been widowed with her two eldest children and shared custody of the
twins with their father.

                                            2
living environment.” She also requested a mutual termination of her lease.

        On Monday, one of the Village’s employees stopped by Arredondo’s
apartment to discuss the noise complaint. On Tuesday, just nineteen days into her
lease, the Village followed up with a written notice of lease violation. The Village
ticked boxes on the notice for “disturbance,” “disturbing others,” “excessive
noise,” “loud or obnoxious behavior,” and “trash by your entry,” attaching a
photograph of snack wrappers on the ground. Arredondo was incredulous, noting
that there was a shutdown for the pandemic and she was being asked to keep her
children quiet both indoors and outdoors. Later that day, a police officer also came
to Arredondo’s apartment to discuss the noise complaint.

      One week later, the Village delivered a second written notice of lease
violation, ticking the same boxes. The notice specified that the apartment
management had responded to another noise complaint and had observed
Arredondo’s apartment for ten minutes. Per the notice, the manager witnessed
constant running, screaming, loud banging, running in and out of the apartment,
slamming doors, and “obnoxious” behavior in the common area. The Village
warned Arredondo that it was a violation of the lease to disrupt other residents. The
notice also stated that “[i]f disturbances do not stop then possible eviction” and if
Arredondo failed to reach a satisfactory resolution with management, “additional
action will follow.” Arredondo explained to an employee of the Village that the
kids had been playing while on a break from at-home school and were laughing,
but not yelling.

      That night, one of the twins woke crying from a nightmare. The downstairs
neighbor called police, who knocked on Arredondo’s door at 2:00 a.m.

      To Arredondo, it became “clockwork” that almost every other day she was
receiving a call or a visit from a Village employee. When an employee came to her
                                         3
door, the on-site police officer would also come. On May 4, 2020, the Village
suggested relocating Arredondo to a first-floor apartment if one became available.
After this, the Village manager again approached Arredondo with a police
officer—this time while she was in her car at the apartment exit. Finally, on May
14, a police officer again came to Arredondo’s door. Feeling hopeless after two
written lease violations, at least three police visits, and multiple telephone calls and
visits from the Village management, Arredondo started looking for a home to rent.

      Just two months after moving in, Arredondo moved out of the apartment—
but did not give notice—on May 30, 2020. She paid rent through June 2020, and
the Village issued Arredondo a final account statement for $14,031.25 for rent and
fees under the lease terms. Arredondo sued the Village and its general partner,
VOTL, on July 8, 2020. The Village countersued for the unpaid rent and fees, and
appellees filed a traditional and no-evidence motion for summary judgment after
the close of the discovery period. The trial court granted appellees’ motion in
December 2021. This appeal followed.

                            II.   STANDARD OF REVIEW

      “When a party moves for both traditional and no-evidence summary
judgments, we first consider the no-evidence motion.” First United Pentecostal
Church of Beaumont v. Parker, 

 (Tex. 2017) (citing Ford
Motor Co. v. Ridgway, 

 (Tex. 2004)). “To defeat a no-
evidence motion, the non-movant must produce evidence raising a genuine issue of
material fact as to the challenged elements.” Parker, 

 (citing
Ridgway, 

). “If the non-movant fails to meet its burden under the
no-evidence motion, there is no need to address the challenge to the traditional
motion, as it necessarily fails.” 

 (citing Merriman v. XTO Energy, Inc., 

 (Tex. 2013)). “Thus, we first review each claim under the no-

                                           4
evidence standard.” 

 Any claims that survive the no-evidence review will then
be reviewed under the traditional standard. 

 at 219–20.

      In a no-evidence motion for summary judgment, the movant asserts that
there is no evidence of one or more essential elements of the claim or defense for
which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); see
Timpte Indus. v. Gish, 

 (Tex. 2009). The burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact as to the
elements specified in the motion. See Mack Trucks, Inc. v. Tamez, 

 (Tex. 2006). We will affirm a no-evidence summary judgment when (a) there
is a complete absence of evidence of a vital fact, (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital
fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla,
or (d) the evidence conclusively establishes the opposite of the vital fact. See City
of Keller v. Wilson, 

 (Tex. 2005).

      A party moving for traditional summary judgment meets its burden by
proving that there is no genuine issue of material fact and it is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c). “A genuine issue of material fact exists
if the evidence rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.” Parker, 

 (internal quotations
omitted). The evidence does not create an issue of material fact if it is “so weak as
to do no more than create a mere surmise or suspicion” that the fact exists. Kia
Motors Corp. v. Ruiz, 

 (Tex. 2014) (quoting Ridgway, 

).

                           III.   ARREDONDO’S CLAIMS

      Arredondo sued appellees for familial status discrimination under the Texas
Fair Housing Act, 

, and the Federal Fair Housing
                                          5
Act., 

. She also brought claims for breach of contract,
constructive eviction, and breach of warranty of quiet enjoyment. The Village and
VOTL filed a no-evidence motion for summary judgment on these claims.

A.     WAIVER

       As a preliminary matter, appellees argue that Arredondo has waived any
challenge to the judgment by failing to offer substantive analysis, proper record
citations, and applicable authority in her appellate briefing. See Tex. R. App. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”); WorldPeace v.
Comm’n for Law. Discipline, 

 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (concluding that appellate arguments were waived due to
the absence of “argument or citations to the record or to authority”). Recognizing
this court’s obligation to construe the rules of appellate procedure “reasonably, yet
liberally,” we address Arredondo’s arguments to the extent possible; that is, when
her arguments are supported by appropriate citations to authorities and to the
record. See Tex. R. App. P. 38.1(i); Republic Underwriters Ins. v. Mex–Tex, Inc.,

 (Tex. 2004) (quoting Verburgt v. Dorner, 

 (Tex. 1997)).

B.     FAMILIAL STATUS DISCRIMINATION

       Both the Federal Fair Housing Act (“FHA”) and Texas Fair Housing Act
(“TFHA”)2 prohibit discrimination in the rental or sale of a dwelling, or in the
provision of connected services or facilities, based on certain protected

       2
          The TFHA “provide[s] rights and remedies substantially equivalent to those granted
under federal law.” 

; see Richardson v. SV Almeda I Ltd. P’ship,
No. 01-11-01004-CV. 

, at *6 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013,
no pet.) (mem. op.). Accordingly, because the few Texas cases addressing the TFHA do not
differ from FHA precedent, we utilize federal precedent in our analysis.

                                              6
characteristics, including familial status. See 

; 

.001–.171; Gladstone Realtors v. Vill. Of Bellwood, 

(1979); see also Texas v. Crest Asset Mgmt., Inc., 

 (S.D.
Tex. 2000) (mem. & order). To prove housing discrimination, a plaintiff may show
either disparate treatment or disparate impact on a protected class. See Tex. Dep’t
of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 

, 524, 545–46
(2015); Ricci v. DeStefano, 

 (2009) (stating Title VII prohibits
both intentional discrimination, known as “disparate treatment,” and practices that
are not intended to discriminate but have a disproportionately adverse effect,
known as “disparate impact”). In her First Amended Petition, Arredondo generally
pleads that appellees committed familial status discrimination. Arredondo’s
appellate brief and response to appellees’ motion for summary judgment include
citation to one case about disparate treatment, Woods-Drake v. Lundy, 

 (5th Cir. 1982) (addressing landlord who evicted white tenants after
they had African-American guests), and one case addressing disparate impact.
Davis v. New York City Hous. Auth., 

, 67, 74 (2d Cir. 2002) (detailing
litigation against the city’s housing authority for policies that had the effect or
“adverse impact” of racial discrimination).

      1.     Disparate Treatment

      Disparate treatment is deliberate discrimination. Inclusive Cmtys. Project,
Inc. v. Lincoln Prop. Co., 

 (5th Cir. 2019). “It refers to treating
some people ‘less favorably than others because of a protected trait.’” 

 (quoting
Ricci, 

). There can be no liability under the FHA or TFHA for
discriminatory treatment claims unless the protected trait motivated the challenged
action. Id. at 910. That is, the evidence must create a reasonable inference that the
protected trait was a “significant factor” in the action. Simms v. First Gibraltar

                                         7
Bank, 

 (5th Cir. 1996); Woods-Drake, 

. It is
enough to show that the protected trait was a consideration and played some role in
the housing decision. See Simms, 

 n.30. A plaintiff can prove
disparate treatment by direct or circumstantial proof, see Crest Asset Mgmt., 

; “[w]hether a plaintiff presents direct or circumstantial evidence
of discrimination determines the framework in which the court must analyze the
claim.” 3 Treece, 593 F. Supp.3d at 435.

       Arredondo has not provided this court with any argument about whether she
presented direct or circumstantial evidence of disparate treatment at the trial court,
and she does not discuss the legal framework under which the court should analyze
her claim. In our examination of her summary judgment evidence, we do not see
direct evidence of animus against her based on familial status. In the absence of
direct evidence, a claim for intentional discrimination based on circumstantial
evidence is evaluated using a burden-shifting evidentiary standard, in which the
plaintiff must first establish a prima facie case of disparate treatment. See Crain v.
City of Selma, 

, 641 (5th Cir. 2020). If the plaintiff provides such
prima facie evidence, the burden then shifts to the defendant to articulate a
“legitimate, non-discriminatory reason for the action.” Treece, 593 F. Supp.3d at
437 (citing Crain, 952 F.3d at 640–41). “Then, the burden shifts back to the
plaintiff to rebut the reason offered by the defendant by showing it was a ‘pretext
for discrimination.’” 

       3
          “Direct evidence is ‘is evidence which, if believed, would prove the existence of a fact
(i.e., unlawful discrimination) without any inferences or presumptions.’” Treece v. Perrier
Condo. Owners Ass’n, 593 F. Supp.3d 422, 435 (E.D. La. 2022) (quoting Bodenheimer v. PPG
Indus., 

 (5th Cir. 1993)); cf. Jespersen v. Sweetwater Ranch Apts., 

, 653–54 (Tex. App.—Dallas 2012, no pet.) (in employment discrimination, direct evidence
is evidence of what the defendant did or said that, without inference or presumption, establishes
discriminatory intent). Statements that courts have found to be direct evidence of discrimination
have tended to be insults or slurs against the protected group. Jespersen, 

.

                                                8
      The elements of a prima facie case vary depending on the facts and claims of
the case. Id. at 439. The general elements are (1) the plaintiff is a member of a
protected class under the Fair Housing Act; (2) the plaintiff was eligible for
favorable treatment; (3) the defendant acted adversely toward the plaintiff; and (4)
favorable treatment remained open to non-members of the protected group (e.g.,
the housing opportunity remained available to similarly situated residents). See id.
It is undisputed that Arredondo and her minor children are members of a protected
familial class. However, Arredondo has not provided specific citation to the record,
argument, or authority as to how she established a prima facie case of disparate
treatment. “Adequate appellate briefing entails more than mentioning arguments in
passing.” Reynoso v. Dibs US, Inc., 

 (Tex. App.—Houston
[14th Dist.] 2017, no pet.). An appellant’s brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record. Tex. R. App. P. 38.1(i). We interpret this requirement reasonably and
liberally, yet also enforce briefing rules that require the appellant to put forth
specific argument and analysis showing that the record and the law supports the
appellant’s contention. Reynoso, 

. Because Arredondo has not
delineated the elements of her prima facie case or provided citations to authority or
the record, she has waived her argument on appeal for intentional discrimination.
See id.

      2.     Disparate Impact

      A disparate impact claim challenges practices that have a disproportionately
adverse effect on the protected group and are otherwise unjustified by a legitimate
rationale. See Tex. Dep’t of Hous. & Cmt’y Affairs v. Inclusive Cmtys. Project,
Inc., 

, 524 (2015). In Inclusive Communities, the Supreme Court
determined that an FHA disparate-impact claim should be analyzed under a three-

                                         9
step, burden-shifting framework. See 

 at 526–27. Under the first step, the
plaintiff must demonstrate a robust causal connection between the defendant’s
challenged policy and the disparate impact on the protected class. 

.
Under the second step, the defendant has the burden to “state and explain the valid
interest served by their policies.” 

. The third step requires the plaintiff to
prove that the defendant’s asserted interests “could be served by another practice
that has a less discriminatory effect.” 

. Disparate impact analysis focuses
on facially neutral policies or practices that may have a discriminatory effect.
Pacheco v. Mineta, 

 (5th Cir. 2006); Tsombanidis v. W. Haven
Fire Dep’t, 

, 574–75 (2nd Cir. 2003). In a disparate impact claim, a
plaintiff need not show the defendant’s action was based on any discriminatory
intent. See Pacheco, 

; Huntington Branch, NAACP v. Town of
Huntington, 

, 934–36 (2nd Cir. 1988).

      Under step one of a disparate-impact claim, the plaintiff must provide prima
facie evidence of (1) the occurrence of certain outwardly neutral practices and (2) a
significantly adverse or disproportionate impact on persons of a particular type
produced by the defendant’s facially neutral acts or practices. See Pacheco, 

; Mhany Mgmt., Inc. v. Cnty. of Nassau, 

 (2nd Cir.
2016). Arredondo identifies paragraph twenty of her lease, entitled “Prohibited
Conduct,” as the Village’s outwardly neutral practice:

      Prohibited Conduct. You, your occupants, and your guests may not
      engage in the following activities:
      ....
      (b) behaving in a loud or obnoxious manner;
      (c) disturbing or threatening the rights, comfort, health safety, or
      convenience of others (including our agents and employees) in or near
      the apartment community[.]

                                          10
Arredondo also testified in her deposition that under this provision of the lease
(hereinafter “Prohibited Conduct provision”), the Village issued notifications of
lease violations, verbally warned her, and warned of eviction due to sounds and
behavior of children at play.

      In addition to an outwardly neutral practice, the basis for a successful
disparate impact claim involves a comparison between two groups—those affected
and those unaffected by the facially neutral policy. Tsombanidis, 352 F.3d at 575.
This comparison must reveal that although neutral, the policy in question imposes
a “significantly adverse or disproportionate impact” on a protected group of
individuals. Id. In the “context . . . [of] housing discrimination, a wide enough
contrast between the way a policy burdens members of a protected group as
opposed to non-members is cognizable as a disparate impact.” R.I. Comm’n for
Human Rights v. Graul, 

 (D.R.I. 2015) (mem. & order);
see Treece v. Perrier Condo. Owners Ass’n, No. 17-10153, 

, at
*14 (E.D. La. Feb. 14, 2020) (citing Graul). To make this initial comparison in
“step one,” plaintiffs normally rely on statistical analysis. See Wards Cove Packing
Co. v. Atonio, 

 (1989); Tsombanidis, 352 F.3d at 575–76. Such
an analysis requires a plaintiff to compare those affected by the policy with those
unaffected by the policy. Tsombanidis, 352 F.3d at 575–76. “[A] disparate-impact
claim that relies on a statistical disparity must fail if the plaintiff cannot point to a
defendant’s policy or policies causing that disparity.” Inclusive Cmtys. Project, 576
U.S. at 542.

      In her deposition, Arredondo estimated that some eighty percent of the
Village’s 600 units were occupied by families, but she did not provide a
comparison between families and nonfamilies for the Village’s application of the
Prohibited Conduct provisions. Arredondo also has not provided any statistical

                                           11
analysis. Arredondo mentioned only one other family in her deposition—her
second-floor neighbors— who “didn’t have any issues” living at the Village. Given
Arredondo’s testimony, the trial court was asked to simply infer that the Prohibited
Conduct provision had a disparate impact on families, but there was no evidence to
support such a conclusion. A plaintiff has not met her burden if she merely raises
an inference of discriminatory impact. Tsombanidis, 352 F.3d at 575; Treece, 

, at *9. Because Arredondo has not provided prima facie proof of a
significantly adverse or disproportionate impact on families, she has not fulfilled
step one of her familial status discrimination claims under the FHA and TFHA.
The trial court thus correctly granted appellees’ no-evidence motion for summary
judgment on this claim.

C.    BREACH OF CONTRACT

      Arredondo also sued appellees for breach of lease. Leases are contracts and
are governed by the rules that apply to contracts generally. Ferrari v. Bauerle, 

 (Tex. App.—Austin 1975, writ ref’d n.r.e.). A plaintiff asserting a
breach-of-contract claim must prove (1) the existence of a valid contract; (2) the
plaintiff performed or tendered performance as the contract required; (3) the
defendant breached the contract by failing to perform or tender performance as the
contract required; and (4) the plaintiff sustained damages as a result of the breach.
USAA Tex. Lloyds Co. v. Menchaca, 

, 501 n.21 (Tex. 2018) (op. on
reh’g). The appellees’ no-evidence motion for summary judgment challenged each
of those elements. See Tex. R. Civ. P 166a(i) (“The motion must state the elements
as to which there is no evidence”). The trial court must grant the motion unless the
respondent produces probative summary-judgment evidence raising a genuine
issue of material fact on the challenged elements. See 

      Arrendondo’s summary judgment evidence includes her lease with the

                                         12
Village.4 However, Arredondo was also required to identify a provision in the lease
that she contends the Village violated and raise a fact issue as to whether appellees
had a contractual duty pursuant to the lease and whether they breached this duty.
See Tex. R. App. P. 38.1(i); see Purvis v. Stoney Creek Cmty. Ass’n, 

, 291 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Arredondo also
generally refers to her deposition testimony about the Village’s notices of
violation, warnings, and threats of eviction, but she has not stated how the
Village’s treatment of her was a breach. See Tex. R. App. P. 38.1(i). She has thus
failed to raise a fact issue on her breach of lease claim. The trial court correctly
granted the appellees’ no-evidence motion for summary judgment on Arredondo’s
claim for breach of lease.

D.     CONSTRUCTIVE EVICTION & BREACH OF WARRANTY

       Lastly, Arredondo sued the Village and VOTL for constructive eviction and
breach of warranty of quiet enjoyment. “A constructive eviction occurs when the
tenant leaves the leased premises due to conduct by the landlord which materially
interferes with the tenant’s beneficial use of the premises.” Fidelity Mut. Life Ins.
v. Robert P. Kaminsky, M.D., P.A., 

 (Tex. App.—Houston
[14th Dist.] 1989, no writ). Texas law relieves the tenant of contractual liability for
any remaining rentals due under the lease if she can establish a constructive
eviction by the landlord. 

 “Constructive eviction essentially terminates mutuality
of obligation as to the lease terms, because the fundamental reason for the lease’s
existence has been destroyed by the landlord’s conduct.” Downtown Realty, Inc. v.

       4
         VOTL, which is the Village’s general partner, did not sign the lease and is not listed as
a party to it. In her brief, Arredondo argues there is some evidence that VOTL was acting
through the Village because the property manager who signed the lease for the Village also
provided an affidavit in the litigation as “the authorized representative” for both VOTL and the
Village. We address the summary judgment on each of her claims without regard to this
contention.

                                               13
509 Tremont Bldg., Inc., 

 (Tex. App.—Houston [14th Dist.]
1988, no writ).

      The essential elements of constructive eviction are (1) an intention on the
part of the landlord that the tenant shall no longer enjoy the premises, (2) a
material act by the landlord that substantially interferes with the tenant’s intended
use and enjoyment of the premises, (3) an act that permanently deprives the tenant
of the use and enjoyment of the premises, and (4) abandonment of the premises by
the tenant within a reasonable time after the commission of the act. Lazell v. Stone,

, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). The
elements of a breach of the warranty of quiet enjoyment are the same as
constructive eviction. 

 at 12 n.1. Appellees’ no-evidence motion for summary
judgment challenged each of these elements.

      Arredondo does not provide record citations or authority specific to each of
these elements. However, the trial court specified in its order that it “read and
considered each cited page of [Arredondo’s] deposition listed in [her] Response to
Defendants’ Traditional and No Evidence Motion for Summary Judgment” before
granting the appellees’ motion. Similarly, this court has also reviewed these
deposition pages, in which Arredondo explained that she felt harassed by the
verbal warnings and written notices the Village gave her each time her downstairs
neighbor complained. Mere notices to a tenant, followed by the tenant’s vacating
the premises, is not sufficient to constitute a constructive eviction; there must be
substantial interference. See Weissberger v. Brown-Bellows-Smith, Inc., 

 (Tex. App.—Galveston 1956, writ ref’d n.r.e.). Although the
Village’s warnings and notifications about the noise complaints upset Arredondo,
this does not create a fact issue showing an intention or a material act by the
landlord substantially interfering with her use of the property. See Stillman v.

                                         14
Youmans, 

, 915–16 (Tex. App.—Galveston 1954, no writ)
(landlord’s pursuit of late rent and refusal to leave premises caused tenant to
abandon “all dignity” and “put her in bed for two days, physically and mentally,”
but did not show intent that tenant should no longer enjoy the premises).
Arredondo has cited no authority, and we have found none, in which similar acts
have been held to constitute constructive eviction. See 

. Although we
agree that the conditions imposed upon Arrendondo due to COVID-19 were
extremely difficult, especially given the need for constant care of her children and
work requirements, we are constricted by established authority. We affirm the trial
court’s ruling that Arredondo did not raise a fact issue on the elements of her
claims for constructive eviction and breach of warranty of quiet enjoyment.

E.    UNPAID RENT & FEES

      The Village also sought a traditional motion for summary judgment on its
claim for breach of contract against Arredondo. It argued that Arredondo moved
out without notice and stopped paying her rent, and the Village was unable to re-
rent her apartment unit for approximately four and half months. The Village’s
evidence in support of its motion for summary judgment included the lease, an
affidavit from its property manager, and a final account statement showing
$14,031.25 in unpaid rent, cleaning fees, unreturned keys and remotes, and other
fees. The trial court granted this motion and awarded the Village $14,031.25 in
damages.

      Arredondo does not dispute the Village’s computation of its damages, but
instead states the Village’s traditional motion for summary judgment “turn[s] on
whether there is some evidence [appellees] discriminated against [Arredondo]
based on her familial status.” Arredondo argues that she raised a fact issue on
familial status discrimination and her other claims, which in turn should preclude

                                        15
the Village’s traditional motion for summary judgment for breach of contract.
Material breach by one party to a contract excuses the other party from any
obligation to perform. Hernandez v. Gulf Grp. Lloyds, 

 (Tex.
1994). Constructive eviction may be pled “by way of avoidance of the obligation
sued on.” Stillman, 266 S.W.2d at 916–17. However, we have already determined
that the trial court correctly granted summary judgment to appellees on familial
status discrimination, constructive eviction, breach of warranty of quiet enjoyment,
and Arredondo’s claim for breach of lease. Thus, such claims do not result in an
avoidance of the Village’s claim for breach of lease. The trial court thus correctly
granted the Village’s traditional motion for summary judgment on its claim for
breach of lease against Arredondo.

      Having concluded that Arredondo did not raise a fact issue on each of her
claims against appellees and that the trial court correctly granted appellees’ motion
for traditional and no-evidence summary judgment, we overrule Arredondo’s sole
issue and affirm the trial court’s judgment.




                                               /s/ Margaret “Meg” Poissant
                                               Justice



Panel consists of Justices Wise, Jewell, and Poissant.




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