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Gonzalez v. Mountain Valley Apartments8/24/2000
standard. Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984). However, a trial court does not abuse its discretion when a party fails to call his motion for new trial to the trial court's attention and allows it to be overruled by operation of law. Fluty v. Simmons Co., 835 S.W.2d 664, 666 (Tex. App._Dallas 1992, no writ); Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank, 703 S.W.2d 356, 357-58 (Tex. App._Dallas 1985, no writ).
The record shows that, although Gonzalez and Gutierrez filed a motion for new trial, they never requested a hearing on their motion, allowing it to be overruled by operation of law. Consequently, Gonzalez and Gutierrez cannot show the trial court abused its discretion. See Fluty, 935 S.W.2d at 666; Shamrock, 703 S.W.2d at 357-58.
Because Gonzalez and Gutierrez failed to raise a fact issue as to foreseeability and failed to request a hearing on their motion for new trial, we overrule their first issue.
Warranty of Habitability Claims
In their second issue, Gonzalez and Gutierrez contend the trial court erred in granting Mountain Valley's motion for summary judgment on the warranty of habitability issue. However, we conclude the warranty of habitability does not apply to this personal injury case as a matter of law. See Bolin Development Corp. v. Indart, 803 S.W.2d 817, 820 (Tex. App._Houston [14th Dist.] 1991), writ denied, 814 S.W.2d 750 (Tex. 1991) (per curiam) (Texas law does not permit tenants to seek damages for personal injury under a breach of warranty of habitability theory); Morris v. Kaylor Eng'g Co., 565 S.W.2d 334, 334 (Tex. Civ. App.-- Houston [14th Dist.] 1978, writ ref'd n.r.e) (warranty of habitability by the landlord does not apply in a tenant's suit for personal injuries). Therefore, we conclude the trial court did not err in granting summary judgment on this issue.
Because we conclude Gonzalez and Gutierrez failed to present evidence on foreseeability, and because the warranty of habitability does not apply to a tenant's suit for personal injuries, the trial court did not err in granting summary judgment. We affirm the trial court's judgment.
ED KINKEADE JUSTICE
Do Not Publish
Tex. R. App. P. 47
991042.OP
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