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At a Glance:
Title:
Philadelphia Indemnity Insurance Company v. White
Date:
May 13, 2016
Citation:
490 S.W.3d 468
Court:
Texas Supreme Court
Status:
Published Opinion

Philadelphia Indemnity Insurance Company v. White

Supreme Court of Texas.

PHILADELPHIA INDEMNITY INSURANCE COMPANY, a/s/o Sienna Ridge Apartments, Petitioner,

v.

Carmen A. WHITE, Respondent

No. 14–0086

|

Argued October 13, 2015

|

Opinion delivered: May 13, 2016

*470 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

Attorneys & Firms

*471 Paul Vigushin, Law Offices of Paul Vigushin, P.C., Richardson, TX, for Petitioner.

Jean Ann Kelly, Sherry G. Rasmus, The Rasmus Firm, Austin TX, for Respondent.

Charles (Chad) E. Baruch, Johnston Tobey Baruch, Dallas TX, for Amicus Curiae SMU Dedman School of Law Civil Legal Clinic.

John Sepehri, Texas Apartment Assocation, Austin TX, for Amicus Curiae Texas Apartment Association.

J. Lee Baldwin, Dallas TX, for Amicus Curiae Texas Tenants’ Union.

Opinion

JUSTICE BROWN joined.

Texas’s strong public policy favoring freedom of contract is firmly embedded in our jurisprudence. Absent compelling reasons, courts must respect and enforce the terms of a contract the parties have freely and voluntarily entered. See, e.g., Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 370, 373 (Tex.2001) (observing that the Texas Property Code restricts freedom of contract in residential tenancies). Today, we determine, as a matter of first impression, whether public policy embodied in the Texas Property Code precludes enforcement of a residential-lease provision imposing liability on a tenant for property losses resulting from “any other cause not due to [the landlord’s] negligence or fault.”

At issue here is a tenant’s responsibility for property damage sustained in a fire that originated in a tenant-owned clothes dryer stuffed with dry, unwashed bedding and pillows. A jury failed to find the tenant negligent in causing the fire, but held the tenant contractually liable for the loss under the terms of the lease agreement. The tenant filed a motion for judgment notwithstanding the verdict, asserting several grounds for avoiding enforcement of the contract. The trial court granted the tenant’s motion without stating the basis and rendered a take-nothing judgment. In a split decision, the court of appeals affirmed, concluding the lease provision broadly and unambiguously shifts liability for repairs beyond legislatively authorized bounds and is, therefore, void and unenforceable. 421 S.W.3d 252, 256, 258 (Tex.App.–San Antonio 2013).

Though we agree the lease language does not expressly incorporate statutory carve-outs, we cannot say the contract is unenforceable on public-policy grounds because (1) the disputed lease provision can be enforced without contravening the Property Code and (2) the record here does not conclusively establish the factual predicate necessary to preclude its enforcement. We therefore affirm the court of appeals’ judgment as to ambiguity, but reverse in part and render judgment that, on the record before the Court, the lease provision is not void and unenforceable. Because the court of appeals did not address the tenant’s other defenses to enforcement, we remand the case to that court for further proceedings.

*472 I. FACTUAL AND PROCEDURAL BACKGROUND

Carmen White executed a Texas Apartment Association (TAA) form lease in which she agreed to reimburse her landlord for all property losses not resulting from the landlord’s negligence or fault (the Reimbursement Provision). Section 12 of the lease provides, in pertinent part:

DAMAGES AND REIMBURSEMENT. You must promptly pay or reimburse us for loss, damage, consequential damages, government fines or charges, or cost of repairs or service in the apartment community due to: a violation of the Lease Contract or rules; improper use; negligence; other conduct by you or your invitees, guests or occupants; or any other cause not due to [the landlord’s] negligence or fault. You will indemnify and hold us harmless from all liability arising from the conduct of you, your invitees, guests, or occupants, or our representatives who perform at your request services not contemplated in this Lease Contract. Unless the damage or wastewater stoppage is due to our negligence, we’re not liable for–and you must pay for–repairs, replacements and damage to the following if occurring during the Lease Contract term or renewal period: (1) damage to doors, windows, or screens; (2) damage from windows or doors left open; and (3) damage from wastewater stoppages caused by improper objects in lines exclusively serving your apartment.

(First emphasis added.)

Shortly after White moved into her apartment, she received a new washer and dryer as a gift from her parents. She successfully connected the washer, but abandoned her efforts to install the dryer because the cord sparked and the circuit breaker tripped when she attempted to plug it into the receptacle. At White’s request, an apartment-complex employee later connected the dryer to the unit’s pre-existing utility connections via a cord White supplied.

Within days of the dryer’s installation, White’s apartment and several adjoining units were severely damaged in a fire that originated in her apartment. White first detected the fire in the clothes dryer, which she had been using to remove allergens from dry and unwashed items, including a duvet, sheets, a blanket, decorative pillows, and a bed pillow. Though the fire started in the dryer drum, the source of ignition is unknown. White was unable to extinguish the fire, and the ensuing casualty loss exceeded $83,000.

Philadelphia Indemnity Insurance Co. paid the landlord’s insurance claim and demanded reimbursement from White. White failed to remit payment, and Philadelphia Indemnity sued her for negligence and breach of contract for noncompliance with the Reimbursement Provision.

At trial, mechanical and electrical malfunction of the dryer, cords, power outlet, and circuit breaker were excluded as causes by a testifying expert. But the parties disputed whether some of the items placed in the dryer contained materials not suitable for mechanical drying, and a chemist testified that a sample of the dryer contents “consisted of cotton fibers, [was] negative for ignitable liquids, and contain[ed] 0.1 percent hexane extractible material by weight and contain[ed] the residue of a vegetable oil.” The dryer’s instruction manual warns: “Do not place items exposed to cooking oils in your dryer. Items contaminated with cooking oils may contribute to a chemical reaction that could cause a clothes load to catch fire.”

*473 Following the close of evidence, the following broad-form liability questions were submitted in the jury charge:

Question No. 1: Did the negligence, if any, of [White] proximately cause damages to the Sienna Ridge Apartments.

Question No. 2: Did [White] violate the terms of the Apartment Lease Contract....

Neither party requested a question to determine the fire’s cause or whether it was attributable to non-negligent conduct on White’s part.

The jury answered “no” to the first question, failing to find that White’s negligence proximately caused the fire. In answering “yes” to the second question, the jury found White breached the lease agreement by failing to pay for the casualty loss and, in doing so, necessarily found the landlord did not negligently cause the fire. Based on the affirmative finding that White breached the lease agreement, the jury awarded $93,498 in actual damages and attorney’s fees to Philadelphia Indemnity.

White moved for judgment notwithstanding the verdict, asserting a variety of grounds for avoiding enforcement of the Reimbursement Provision, including ambiguity and public policy.1 The trial court granted the motion without specifying the grounds and rendered a take-nothing judgment.

A divided court of appeals affirmed, rejecting White’s ambiguity defense, but holding the Reimbursement Provision void as against public policy. id. at 256, whereas the Property Code prohibits landlords from waiving their repair duties under subchapter B, which covers conditions materially affecting the physical health or safety of the ordinary tenant, except for:

(1) conditions caused by the tenant or an affiliated party;2

(2) three specific categories of repairs set forth in section 92.006(f), subject to specificity, conspicuity, and other prerequisites; and

(3) any condition covered by subchapter B if the landlord owns only one rental dwelling at the beginning of the lease term and specificity, conspicuity, and other prerequisites are satisfied.

Id. at 258 & n. 4.

In a dissenting opinion, Justice Barnard addressed each of White’s challenges to contract enforcement and concluded that none had merit. Churchill Forge, 61 S.W.3d at 371).

On appeal to this Court, the parties focus their attention on White’s ambiguity and public-policy defenses to contract enforcement.3 The crux of the public-policy argument concerns the relationship between section 92.006(c) apply in this case. The main points of disagreement are (1) what White must prove to establish the landlord’s repair duty as a predicate to invoking the statutory prohibition that undergirds her affirmative defense, and (2) whether the permissive exceptions to the general prohibition are exclusive.

Citing our opinion in McAnally v. Person, 57 S.W.2d 945, 949 (Tex.Civ.App.–Galveston 1933, writ ref’d) (party seeking to avoid liability under agreement has the burden to plead and prove facts making it unlawful, unless the agreement is facially invalid).

White’s primary complaint is that the Reimbursement Provision broadly imposes no-fault liability without requiring any causal nexus. White distinguishes our opinion in section 92.006(c).

We granted Philadelphia Indemnity’s petition for review to address these important matters because the Reimbursement Provision is part of a TAA-approved form lease agreement used in countless rental arrangements throughout the state.4 Several amici5 have also weighed in on the controversy, highlighting the potential impact on residential leasing.

II. DISCUSSION

As a general rule, parties in Texas may contract as they wish so long as the agreement reached does not violate positive law or offend public policy. Id.

Unlike the lease provision in 421 S.W.3d at 256, 257–58.

The dispute between White and Philadelphia Indemnity ultimately centers on the Property Code’s express allocation of the repair duty between landlords and tenants and the liberty to strike a different bargain. We define the overarching issues as (1) whether section 12 of White’s lease agreement unambiguously imposes liability for the disputed damages; (2) if so, whether the agreement runs afoul of public policy embodied in the Property Code;6 and (3) whether the jury’s failure to find that White’s negligence proximately caused the property damage affects the disposition.

The public-policy and ambiguity analyses are interrelated because we must ascertain the contract’s meaning before we can determine whether it conflicts with the Property Code. Our initial inquiry, therefore, is whether the lease provision clearly and unambiguously shifts responsibility to White for the damages at issue. See TEX. PROP. CODE § 92.061 (statutory duties and remedies under subchapter B are in lieu of other common-law duties and remedies but do not otherwise affect rights under other *477 laws that are not inconsistent with statutory purposes).

A. Ambiguity

A contract is ambiguous if it is subject to two or more reasonable interpretations. Id.

Although the language in the Reimbursement Provision is clear and definite, White points to an apparent redundancy she contends creates ambiguity as to the provision’s actual scope. White finds equivocality in the juxtaposition of a clause imposing broad, nonspecific liability with a clause that identifies specific categories of losses for which the tenant is liable without regard to fault or causation.

On one hand, the Reimbursement Provision distinctly imposes responsibility for (1) damage to doors, windows, or screens, (2) damage from windows or doors left open, and (3) damage from wastewater stoppages caused by improper objects, unless the damage or wastewater stoppage is due to the landlord’s negligence.7 On the other hand, the provision includes “catchall” language capturing losses resulting from “any cause not due to [the landlord’s] negligence or fault.” White thus questions why the contract singles out specific losses for reimbursement absent landlord fault if the catchall language makes the tenant responsible for all loss in the same circumstances. White also points out that specific losses are emphasized by language that is both bolded and underlined, while the ostensibly broader catchall language—which would subsume the specific losses—is less conspicuously presented. White discerns ambiguity in the catchall language’s meaning, arguing it potentially imposes significant liability on tenants while receiving relatively obscure treatment in relation to a more specific subclass of repairs.

Though we strive to construe contracts in a manner that avoids rendering any language superfluous, redundancies may be used for clarity, emphasis, or both. Cf. In re Estate of Nash, 220 S.W.3d 914, 917–18 (Tex.2007) (“[W]e should avoid, when possible, treating statutory language as surplusage, [but] there are times when redundancies are precisely what the Legislature intended.” (internal citation omitted)). All things considered, we cannot discern any construction of the catchall provision other than the one it so plainly commands: White is contractually obligated to reimburse the landlord for all damage not due to the landlord’s negligence or fault. We therefore agree with the court of appeals that the Reimbursement Provision is unambiguous.

We turn now to the principal issue, which is whether the Property Code precludes judicial enforcement of the Reimbursement Provision. We begin our analysis with a brief discussion of the common-law backdrop against which the Property Code exists, which provides meaningful context.

*478 B. No Common–Law Prohibition Against Covenants Imposing Tenant Liability for Repairs without Regard to Fault or Negligence

As part of a historically agrarian society, the relationship between a landlord and tenant was, at its most basic level, a tenant’s promise to pay in exchange for the bare right to possess the property. Halsell v. Scurr, 297 S.W. 524, 529 (Tex.Civ.App.–Fort Worth 1927, writ dism’d w.o.j.).

Consistent with this notion, leases commonly included a covenant to return possession of the premises in as good a condition as when delivered, excepting wear and tear. See Warner v. Hitchins, 5 Barb. 666, 668 (N.Y. Gen. Term 1849) (“It is ... settled, that when the lease contains, on the part of the lessee, an express covenant to uphold and repair the premises, he is liable to make good such losses [caused by accidental fire].”). Under the common law, therefore, landlord and tenant were *479 free to negotiate the tenant’s responsibility for accidental destruction of property by fire.

Though the landlord-tenant relationship had historically centered on possession, over time tenants became increasingly concerned with the condition and habitability of the rented premises. Daitch, 250 S.W.3d at 195.

In its current iteration, the Texas Property Code provides:

The duties of a landlord and the remedies of a tenant under [subchapter B, which governs repairs of a leasehold,] are in lieu of existing common law and other statutory [landlord and tenant duties and remedies]. Otherwise, this subchapter does not affect any other right of a landlord or tenant under contract, statutory law, or common law that is consistent with the purposes of this subchapter.... This subchapter does not impose obligations on a landlord or tenant other than those expressly stated in this subchapter.

Churchill Forge, 61 S.W.3d at 370 (acknowledging that Chapter 92 of the Texas Property Code limits freedom of landlord and tenant to contract).

C. Freedom to Shift Repair Obligations is Restricted

The current version of the Property Code deviates in certain respects from common law landlord-tenant duties and remedies, but all rights not inconsistent with the statute remain intact. See Churchill Forge, 61 S.W.3d at 374 (Property Code’s contract restraints are “activated” only when the landlord has a statutory repair duty). To determine whether the contract provision at issue is void as against public policy, we first consider the legislatively imposed restraints on liberty of contract in the landlord-tenant relationship. We begin our discussion with those considerations, because it is up to the Legislature, not the courts, to decide what the policy of this state should be in the landlord-tenant context.

With respect to freedom of contract, the Legislature plainly identified the prohibition it intended to enforce in section 92.006(c):

A landlord’s duties and the tenant’s remedies under Subchapter B, which covers conditions materially affecting the physical health or safety of the ordinary tenant, may not be waived except as provided in Subsections (d), (e), and (f) of this section.

Churchill Forge, a landlord cannot contractually avoid a repair obligation except when statutorily *480 authorized. The landlord, however, does not have a statutory duty to repair all conditions that may arise in a tenancy.

With regard to habitability, the landlord’s limited duty to repair or remedy is addressed in TEX. PROP. CODE § 92.052(a). Even then, the landlord’s obligation to make such repairs is not absolute. To the contrary:

Unless the condition was caused by normal wear and tear, the landlord does not have a duty ... to repair or remedy a condition caused by:

(1) the tenant;

(2) a lawful occupant in the tenant’s dwelling;

(3) a member of the tenant’s family; or

(4) a guest or invitee of the tenant.

Id. § 92.052(b). Section 92.052(b) does not include fault-based language, and the causal standard is not specified.

As we explained in section 92.006(f):

(f) A landlord and tenant may agree that, except for those conditions caused by the negligence of the landlord, the tenant has the duty to pay for repair of the following conditions that may occur during the lease term or a renewal or extension:

(1) damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant’s dwelling;

(2) damage to doors, windows, or screens; and

(3) damage from windows or doors left open.

This subsection shall not affect the landlord’s duty under Subchapter B [i.e., section 92.052] to repair or remedy, at the landlord’s expense, wastewater stoppages or backups caused by deterioration, breakage, roots, ground conditions, faulty construction, or malfunctioning equipment. A landlord and tenant may agree to the provisions of this subsection only if the agreement meets the [clear, specific, and conspicuous writing] requirements of Subdivision (4) of Subsection (e) of this section.

*481 Id. § 92.006(f). Churchill Forge, 61 S.W.3d at 372–73.

The facts of this case do not fall within subsection (f)’s exception to subsection (c)’s anti-waiver rule, and on its face, the catchall language in the Reimbursement Provision is not limited to those conditions. See id. § 92.006(c), (f). White thus asserts that the lease, on its face and as applied, is repugnant to the statute because the Reimbursement Provision applies when the landlord has a repair duty and when none of the exceptions to subsection (c) apply.

Philadelphia Indemnity takes a different view, asserting that White failed to carry her burden of establishing the lease agreement conflicts with Churchill Forge, 61 S.W.3d at 371 (“Legislative permission to contract under certain circumstances does not necessarily imply that contracting under other circumstances is prohibited. Certainly, given this State’s strong commitment to the principle of contractual freedom, we should hesitate to infer a general prohibition from a statutory clause granting specific permission to contract.”). Thus, even if 92.006(c) applies, Philadelphia Indemnity contends the statutory exceptions are not exclusive.

Philadelphia Indemnity misconstrues the limited holding in section 92.006(c) applies, however, the exceptions are permissive, but they are also exclusive.

In Id. at 369.

Although acknowledging that section 92.061 makes clear that the Legislature did not intend the Subchapter to otherwise affect the parties’ presumptive right to contract over who would be responsible for conditions caused by the tenant, the tenant’s occupant, or guest.”).

The lease provision in Id. at 370, 373 (“Public policy does not restrict a landlord and tenant from agreeing that the tenant will be responsible for damages the tenant or cotenant causes.”).

We discussed the interplay of duty, cause, and contractual risk allocation as follows:

Taken together, [sections 92.006(c) and its exceptions] dictate that a commercial landlord [i.e. one who owns more than one residential rental dwelling] cannot ask a tenant to pay for repairs that the landlord has the duty to make. Excepted from that dictate is subsection (f), under which there are three specific kinds of repairs that the parties can, by contract, shift the duty to pay for from the landlord to the tenant.... And not covered by that dictate are those agreements between the parties concerning damages for which the landlord has no duty to repair, i.e., tenant-caused damages.

Id.

As Churchill Forge and relied on by Philadelphia Indemnity does not suggest the contrary.

With regard to the Reimbursement Provision in White’s lease, broad notions of public policy ultimately reduce to whether enforcement of the reimbursement provision would require White to pay for damages that were not tenant-caused and that the landlord, therefore, had a nonwaivable duty to make. We acknowledge that, on its face, the Reimbursement Provision lends itself to such an application, but mere potential for an impermissible application cannot be dispositive of the public-policy inquiry.

D. The Reimbursement Provision is Not Unenforceable Per Se

“ ‘A contract to do a thing which cannot be performed without violation of the law’ violates public policy and is void.” Tex. Emp’rs Ins. Ass’n v. Tabor, 283 S.W. 779, 780 (Tex. Comm’n App.1926, judgm’t adopted).

The Reimbursement Provision in White’s rental agreement is overly broad in the sense that it does not expressly carve out any exceptions other than landlord negligence and, therefore, is susceptible to overreaching in its application by encompassing reimbursement scenarios in which a landlord would have a nonwaivable duty to repair under chapter 92 of the Property Code. But this circumstance is not fatal to enforcement. The provision would be unenforceable per se only if it could not be performed without violating the Property Code. Here, that is simply not the case. For instance, if White’s landlord were seeking reimbursement for remediating a tenant-caused condition or a condition not materially affecting habitability, the cost-shifting limitations in (f) would not be implicated and performance of the contract would not contravene the statute.

Appealing as it might seem to automatically invalidate broadly worded contract provisions, doing so necessarily imperils freedom of contract and, in the residential-leasing context, deprives the Legislature of its role as the policy-making body.8 Rather, such an approach *484 substitutes the policy views of individual judges for those of the Legislature. Tempting as it is for courts to make policies that protect consumers, our role is much more circumscribed. We must interpret the law fairly and defer to the Legislature’s policy choices. We thus adopt a more measured approach that harmonizes the importance of contractual liberty with legislatively enacted public-policy limitations. Notwithstanding the Reimbursement Provision’s apparent overbreadth, we will not improperly employ public policy to mechanically jettison the parties’ agreement. Rather, we must read the agreement in conformity with the limitations imposed in the Property Code and refuse enforcement only when doing so would create an actual conflict with the statute. Cf. Lewis, 199 S.W.2d at 149. Consequently, we will decline to enforce the Reimbursement Provision only if the evidence establishes its invalidity in the situation at hand.

E. The Record Does Not Conclusively Establish Unenforceability

The critical fact that bears on contract invalidity in this case is whether, within section 92.052(b) with regard to the burden of proof and the existence of a fault-based limitation.

We review statutory construction issues de novo, City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008).

Applying these well-established statutory-construction principles, we hold the causal standard in section 92.052(b) is not fault-based, and White bears the burden of proving facts in avoidance of contract enforcement. Given this statutory construction, we further conclude that White cannot rely on the jury’s negative finding to question one—inquiring whether her negligence caused the fire—as a substitute for an affirmative finding that the damages were not tenant caused. White’s failure to submit a causation question to the jury is *485 the lynchpin for concluding she has failed to prove her affirmative defense.

1. Burden of Proof

White carries the burden of pleading and proving the contract’s invalidity as an affirmative defense. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156–57 (Tex.2015). The disputed issue is whether White secured the findings necessary to prove her landlord had a nonwaivable repair duty under the facts of this case.

As we have discussed in some detail, the anti-waiver prescription in TEX. PROP. CODE § 92.0563(b) (providing a statutory remedy if a landlord knowingly contracts to waive the landlord’s duty to repair).

Section 92.052 defines the landlord’s duty of diligent repair as follows:

(a) A landlord shall make a diligent effort to repair or remedy a condition if:

(1) the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid;

(2) the tenant is not delinquent in the payment of rent at the time notice is given; and

(3) the condition:

(A) materially affects the physical health or safety of an ordinary tenant; or

(B) arises from the landlord’s failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.

(b) ... [T]he landlord does not have a duty ... to repair or remedy a condition caused by:

(1) the tenant;

(2) a lawful occupant in the tenant’s dwelling;

(3) a member of the tenant’s family; or

(4) a guest or invitee of the tenant[ ]

[unless the condition was caused by normal wear and tear].

(c) This subchapter does not require the landlord:

*486 (1) to furnish utilities from a utility company if as a practical matter the utility lines of the company are not reasonably available; or

(2) to furnish security guards.

(d) The tenant’s notice under Subsection (a) must be in writing only if the tenant’s lease is in writing and requires written notice.9

In re Office of the Att’y Gen. of Tex., 456 S.W.3d 153, 155–56 (Tex.2015) (emphasizing the importance of context in questions of statutory construction).

Construed in context, Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.2004) (when one claims a duty owed by another, the party claiming the duty generally bears the burden of establishing it). But more importantly, it places the burden of proof on the party who controls the leased premises and is, therefore, in the best position to (1) avoid damage to the premises and (2) prove that another party is responsible for the damage.

The dissenting justices read section 92.052 presents, on its face, a plausible, natural reading of subsections (a) and (b) and serves the salutary purpose of encouraging prompt remediation of conditions affecting habitability.

But it also poses several practical problems and is inconsistent with the statute as a whole. Among other issues, a duty/exception construction of section 92.052 places the landlord at a distinct disadvantage in attempting to prove the cause of damage to premises under the tenant’s control, creating potentially insurmountable proof problems. The facts of this case, though unusual in the degree of damage, are a prime example.

We need not speculate about which construction the Legislature intended, however, because section 92.053 of the Property Code resolves the issue and plainly charges the tenant with the burden of proving the cause of any premises condition if the landlord’s obligation to repair the condition is disputed.

Section 92.053 provides:

(a) Except as provided by this section, the tenant has the burden of proof in a judicial action to enforce a right resulting from the landlord’s failure to repair or remedy a condition under Section 92.052.

(b) If the landlord does not provide a written explanation for delay in performing *487 a duty to repair or remedy on or before the fifth day after receiving from the tenant a written demand for an explanation, the landlord has the burden of proving that he made a diligent effort to repair and that a reasonable time for repair did not elapse.

Id. § 92.053 (emphasis added). A tenant’s repair remedies under subchapter B are conditioned on the existence of a duty under section 92.053 were silent about the landlord’s burden of proof, it might add nothing to the analysis.

But section 92.006.

The Legislature has spoken, and we are not empowered to determine what is “fair” legislative policy. Amicus briefs filed in connection with this case raise a number of competing interests and concerns in the landlord-tenant relationship, but the duty to balance opposing interests and equities and to set the policy of the state lies with our duly elected representatives. Our *488 duty is to give effect to the Legislature’s collective policy determinations.

2. Essential Fact Findings Are Lacking

White did not meet her burden to obtain the requisite fact findings. The jury failed to find that White’s negligence proximately caused the fire, but made no affirmative finding regarding causation. Both White and the court of appeals relied on the jury’s negative response to the negligence question as a proxy for establishing the factual predicate to the landlord’s repair duty. The court of appeals provided no analysis of the issue, but White asserts that the negligence finding resolves the public-policy matter because “caused by” requires fault and proximate cause. We disagree and conclude that (1) “caused by” is not a fault-based standard, (2) a failure to find response to the negligence question does not equate to an affirmative finding of no causation, and (3) assuming without deciding that proximate cause is the relevant causal standard, the record does not conclusively establish that White’s actions did not cause the fire.

Because White bears the burden of proof, the jury’s failure to find White’s negligence caused the fire is not dispositive of the landlord’s duty. A negative answer to the negligence issue simply means that Philadelphia Indemnity failed to carry the burden of proof on its negligence claim; it is not a positive finding that White was not at fault or did not cause the damage. See, e.g., Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989) (for purposes of determining the proper standard of review, “treat[ing] the jury’s failure to find that [the defendant] acted with justification or excuse as a finding by the jury that [the defendant] acted without justification or excuse ... is a misinterpretation of both the issue and the answer”). Philadelphia Indemnity had the burden to obtain an affirmative finding on its negligence claim, but the onus was on White to obtain an affirmative finding that the fire-related damages were not “caused by” her to establish her affirmative defense to Philadelphia Indemnity’s contract claim.

The jury’s finding also does not aid White because fault and causation were commingled, and section 92.052 to give it the meaning White advances. This we cannot do when the statute, construed as a whole, reflects the Legislature’s decision to incorporate fault-based standards in some provisions and not others. While fault-based tenant-caused conditions would certainly be excluded from the landlord’s statutory repair duty, that is not the exclusive standard.

Having concluded that id.

Despite the absence of an affirmative finding regarding the cause of the fire, White could establish her affirmative defense if the record conclusively establishes the absence of the requisite causal relationship, either by negating White’s role in causing the damage or by establishing an alternative cause of the damage. The record does not do so, however.

At trial, the jury heard evidence that the fire originated in a clothes dryer that was *490 owned by White and under her exclusive control; she was using the dryer at the time the fire started; the dryer was filled with several items; a firefighter testified that some dryer fires are caused by overloading; the dryer manual warned against drying certain materials; a fire department report indicated the possible presence of prohibited materials; White admitted that she had not read the labels on any of the items she put into the dryer and was unaware of any restrictions on drying the items; the dryer’s instruction manual warns that cooking oils may cause clothing to catch fire and an expert testified to the presence of vegetable oil residue in samples from the dryer drum; expert witnesses found no evidence of electrical or mechanical malfunction within the dryer, and arson and lint build-up were eliminated as causes; the power cord (which remained intact), the power receptacle, and the circuit breaker were also eliminated as causes; there was no evidence of acts of God or intervention by third parties; and no witness was able to explain how the fire inside the dryer drum started. This is more than some evidence that White’s actions, even if not negligent, caused the fire that originated in her personal appliance. Accordingly, White has not established that the Reimbursement Provision, as applied, contravenes the limitations set forth in section 92.006.

The dissenting justices lament that applying section 92.053 as it is plainly written places White in the “difficult[ ]” position of “proving a negative,” 490 S.W.3d at 495 (BOYD, J., dissenting), but the issue is more accurately stated as requiring her to prove the fire’s cause. To highlight the hardship White purportedly faces in meeting her burden, the dissenting opinions note that a maintenance worker actually connected the dryer for White because her prior attempt failed when the power receptacle sparked and the circuit breaker tripped. Id.; see also 490 S.W.3d at 492 (DEVINE, J., dissenting). Any disadvantage to White based on these circumstance is not apparent, however, because the role the power cord, power receptacle, and circuit breaker played in causing the fire was susceptible of proof by both parties, and these items were affirmatively eliminated as causes of the fire that originated in the dryer drum.

III. CONCLUSION

“[C]ompetent parties in Texas ‘shall have the utmost liberty of contracting.’ ” Royston, Rayzor, Vickery, & Williams, 467 S.W.3d at 504. Thus, a contract capable of being performed in harmony with the laws and statutes of this State is not per se void as against public policy. Unless an agreement cannot be performed without violating the law or public policy, the party seeking to avoid enforcement must establish its invalidity under the particular *491 circumstances. White failed to do so in this case.

The Texas Property Code’s restrictions on contractually shifting the landlord’s repair obligations do not apply if a landlord has no duty to repair in the first instance. Landlords have no obligation to repair premises conditions that are tenant-caused and therefore are not restrained from contracting with tenants for reimbursement of associated repair costs. White failed to obtain a finding that she did not cause the damages at issue; the jury’s failure to find in response to a negligence submission is not a substitute for the essential fact finding; and the record does not conclusively establish that fact. Accordingly, White failed to establish the factual predicate to contractual invalidity in this case. We therefore reverse the court of appeals’ judgment to the extent it invalidates the Reimbursement Provision on public-policy grounds and render judgment that the lease provision is not unenforceable on that basis. We affirm the court of appeals’ judgment on ambiguity, but we remand the case to that court for consideration of White’s remaining defenses to enforcement.

JUSTICE DEVINE joined.

JUSTICE DEVINE filed a dissenting opinion.

JUSTICE DEVINE, dissenting.

The outcome of this case simply depends on which party bore the burden to prove whether a tenant caused a fire in her apartment. The lease requires the tenant to repair all damage not caused by the landlord’s “negligence or fault.” The tenant contends the landlord cannot enforce that requirement because the Texas Property Code requires the landlord to repair the damage unless the tenant caused the fire and prohibits the landlord from contractually avoiding or waiving that duty. The Court agrees that the Property Code1 *492 would prohibit the landlord from enforcing the lease provision if the tenant had obtained a jury finding that she did not cause the fire. Ante at 476. I do not agree that the Code puts the burden on the tenant to prove that she did not cause the fire, and conclude instead that the landlord has the burden to prove that she did. Because the landlord did not get a jury finding that the tenant caused the fire, I agree with the court of appeals that the Code prohibits the landlord from enforcing the provision that requires the tenant to repair the damage. Because the Court holds otherwise, I respectfully dissent.

I.

The Lease

A fire that apparently started in a clothes dryer caused $83,000 in damages to Carmen White’s apartment and others around hers. When White tried to plug in a new dryer that her parents had given her, the cord sparked and the breaker tripped. She contacted the landlord, whose employee later installed the dryer and plugged it in. White was using the dryer when the fire started, but no one seems to know what actually caused the fire to ignite.

White signed a lease in which she agreed to pay for any damages that result from “any cause not due to [the landlord’s] negligence or fault.” The jury was not asked whether the fire was “due to [the landlord’s] negligence or fault.” Since the jury did not find the landlord negligent or at fault, I agree with the Court that the lease’s plain language requires White to reimburse the landlord for the damage.

But White contends that the lease is unenforceable. Undoubtedly, the agreement is enforceable under the common law. We “may neither rewrite the parties’ contract nor add to its language,” In re Deepwater Horizon, 470 S.W.3d 452, 464 (Tex.2015). White signed a lease agreeing to pay for all damages not caused by the landlord’s negligence or fault, and the common law would hold her to that promise.

II.

The Code

The Legislature, however, has passed statutes that limit the circumstances in which a landlord can require a residential tenant to repair certain conditions. Specifically, the Property Code requires a landlord to repair any condition that “materially affects the physical health or safety of an ordinary tenant.” *493 § 92.006(c). Here, because the fire indisputably created a condition that affects physical health and safety, the Code requires the landlord to repair the damage despite the lease’s language that would otherwise waive that duty.

Yet the Code provides an important exception: the landlord’s unwaivable duty to repair conditions affecting health and safety does not apply to conditions “caused by” the tenant. Id. § 92.052(b).2 Because this exception simply says “caused by” the tenant, as opposed to “intentionally” or “negligently” (or otherwise) caused by the tenant, the Court concludes, and I agree, that the exception “is not fault based.” Ante at 484. So under the Code, the landlord has an unwaivable duty to repair any condition that affects a tenant’s physical health and safety unless the tenant caused that condition, even if the tenant accidentally or innocently caused it. Ante at 474.

The jury charge only asked whether White negligently caused the fire, and the jury found that she did not. But that does not mean she did not cause the fire without negligence, and there was no jury finding on that issue.3 The question of whether the exception for tenant-caused conditions applies to the landlord’s otherwise unwaivable duty to repair thus depends on who had the burden to prove that White caused the fire. If White bore the burden to prove that she did not cause the fire, the Court correctly holds that the landlord has no duty here because White failed to get the necessary jury finding. But if the landlord had the burden to prove that White caused the fire, its failure to secure that jury finding renders the exception inapplicable and leaves the landlord with the unwaivable duty to repair despite the lease’s provision to the contrary. I disagree with the Court’s conclusion that the Code places the burden on White to prove that she did not cause the fire.

III.

The Burden

Attempting to avoid her contractual obligation, White contends that the agreement violates the Property Code and thus is invalid and unenforceable. The Court asserts that “White carries the burden of pleading and proving the contract’s invalidity as an affirmative defense.” Ante at 485. I agree, but the issue here is not whether the contract violated the landlord’s unwaivable duty, but whether the tenant-caused exception to that unwaivable duty applies.

The last time we addressed this statute, we agreed that the Code places the burden *494 on the landlord to prove that the tenant-caused exception to the unwaivable duty applies. See Churchill Forge and gets it wrong today.

A. Burden on the party who relies on the finding

The Court contends that its construction “properly places the burden of proof on the party claiming the existence of a duty.” Ante at 486. More specifically, the Court concludes that the tenant must bear the burden of proving the contract’s “invalidity” because that proof establishes an affirmative defense to the landlord’s contract claim. Ante at 474. I agree that the tenant bears the burden of proving the contract’s invalidity as an affirmative defense, but the tenant meets that burden under the statute by proving that the landlord has an unwaivable duty to repair. Id. § 92.052(a).

If the tenant proves those facts, the landlord must repair the condition unless the tenant caused the condition. Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 157 (Tex.2015) (explaining that an affirmative defense or avoidance is a defense that “require[s] proof of ... additional fact[s] to establish its applicability”).

In this case, the tenant relies on the statutory unwaivable duty and the landlord relies on the tenant-caused exception to avoid the unwaivable duty. The fact that the tenant caused the condition is not an affirmative defense to the landlord’s contract claim; because it is an “additional fact” that defeats the affirmative defense, it is an exception that provides a counter-defense to the tenant’s affirmative defense. “[T]he burden of proving a statutory exception rests on the party seeking the benefit from the exception,” not on the party seeking to avoid that benefit. City of Houston v. Jones, 679 S.W.2d 557, 559 (Tex.App.–Houston [14th Dist.] 1984, no writ)).4 Here, because the landlord seeks *495 the exception’s benefit, it bore the burden to prove the “additional facts” necessary to trigger the exception.

We have repeatedly and consistently understood that the burden shifts to the plaintiff to establish an exception that provides a counter-defense to the defendant’s affirmative defense. See, e.g., Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex.2010) (“If the insurer proves that an exclusion applies, the burden shifts back to the insured to show that an exception to the exclusion brings the claim back within coverage.”). Nothing in the Property Code suggests an alternative burden-shifting scheme than that found in any other context. Properly construed, the Code places the burden on the tenant to establish the landlord’s unwaivable duty and then places the burden on the landlord to establish the tenant-caused exception to that duty.

B. Proof problems

The Court also asserts that placing the burden on the landlord to prove that the tenant caused the damage would result in “potentially insurmountable proof problems,” because the tenant “controls the leased premises and is, therefore, in the best position to ... prove that another party is responsible for the damage.” Ante at 486. I disagree. Here, for example, the evidence established that White acquired and used the dryer. But the landlord’s employee is the one who actually installed it, and he did so after it sparked when White first tried to plug it in. Because White relied on the landlord to properly install the dryer, I conclude that the difficulty the landlord faces in proving that White caused the fire damage pales in comparison to the difficulty White would face proving that she did not cause the damage. We have consistently recognized that, “as a practical matter, ‘proving a negative is always difficult and frequently impossible.’ ” section 92.052 obligates the tenant to prove a negative, so we should not require White to do so either.

C. Section 92.053(a)

Finally, turning to the statutory text, the Court asserts that section 92.053 confuses the tenant’s *496 “right[s] resulting from” the landlord’s breach of its unwaivable duty with the existence of that duty in the first place.

Subsequent sections describe the tenant’s rights when a landlord breaches its duty to repair a condition. Specifically, the tenant may terminate the lease; have someone repair the condition and deduct the repair cost from future rent payments; or get a court order requiring the landlord to repair the condition, reducing the amount of the tenant’s rent, and awarding the tenant a civil penalty, damages, court costs, and attorney’s fees. Id. section 92.052 is a defense to the contract, not a source of any remedy.

Further, even if she were trying to enforce these statutory remedies, the Property Code sets out explicit requirements for obtaining those remedies, and section 92.053 places the burden on the tenant to prove that an exception to the landlord’s unwaivable duty does not apply.

IV.

Conclusion

Carmen White seeks to escape her agreement to pay for any damages her *497 landlord did not cause. She relies on a statute that requires the landlord to repair any condition that affects physical health and safety and prohibits the landlord from waiving that duty. I agree with the Court that White had the burden to prove that statutory defense. But the landlord (or more accurately here, its insurer) relies on a statutory exception that eliminates the landlord’s duty when the tenant caused the damage. I would hold that the burden shifts to the landlord to prove that exception to White’s statutory defense. The Court merges these two steps into one and requires White to both prove the duty and disprove the exception. For the reasons explained, I cannot agree. The landlord’s insurer did not meet its burden to obtain a finding that White caused the fire that created the condition that the landlord otherwise had an unwaivable duty to repair. I would, therefore, affirm the court of appeals’ determination that the statute places the duty to repair on the landlord rather than on White, despite their contractual agreement to the contrary. Because the Court holds otherwise, I respectfully dissent.

JUSTICE DEVINE, dissenting.

The Court’s opinion obscures the simple issue in this case: whether a plaintiff can prevail on a breach-of-contract claim without a jury finding that the defendant breached an enforceable promise. The obvious answer is no. Because the Court holds otherwise, I respectfully dissent.

I

After a fire destroyed Carmen White’s apartment and damaged several neighboring units, White’s landlord filed a claim with its insurer, Philadelphia Indemnity Insurance Company. Philadelphia paid the claim, and then sued White, asserting its subrogation rights against her. Philadelphia initially claimed White was negligent in starting the fire, but later added a breach-of-contract claim against White. Philadelphia asserted that, even if White didn’t cause the fire, she breached the “catch-all” provision in paragraph 12 of her lease by failing to reimburse her landlord for the repairs associated with the fire.

The catch-all provision in paragraph 12 of White’s lease provides that she is responsible for paying for the cost of repairing any conditions “in the apartment community” that were “not due to [the landlord’s] negligence or fault.” On its face, the catch-all provision violates chapter 92 of the Property Code, which dictates that a commercial landlord (like White’s) “cannot ask a tenant to pay for repairs that the landlord has the duty to make.” (b).

A separate provision in paragraph 12 of White’s lease obligates her to pay for repairs of conditions she caused. Philadelphia does not assert that White breached this provision. Philadelphia instead asserts that White breached the catch-all provision because, as it recognized in the court of appeals, it can hold White responsible without obtaining “a definitive finding of what caused the [fire].”

Indeed, at trial, no witness, including Philadelphia’s own expert, offered an opinion on the cause of the fire, and no cause was conclusively established.1 The jury *498 was asked in broad-form whether White was negligent and whether White breached her lease. The jury answered “no” to the first question, but “yes” to the second question. Although the jury found that White breached her lease, it did not necessarily conclude that she caused the fire, because the catch-all provision in paragraph 12 of her lease makes her responsible for any condition “not due to the [landlord’s] negligence or fault.” Based on the evidence before it, the jury could have concluded that White did not cause the fire, but also concluded she breached the catch-all provision. Had Philadelphia sued on the other provision in paragraph 12 of White’s lease obligating her to pay for repairs of conditions she caused (or a catch-all provision that did not overstep the bounds of chapter 92 by purportedly making her responsible for conditions affecting habitability that she did not cause), the jury’s “yes” answer on whether White breached her lease would have necessarily answered the question of whether she caused the fire. However, Philadelphia was able to avoid obtaining that finding by relying on the unlawful overbreadth of the catch-all provision.

Recognizing the absurdity of this result, White moved for judgment notwithstanding the verdict, arguing (among other things) that Philadelphia could not prevail on its breach-of-contract claim because (1) the catch-all provision in paragraph 12 of her lease (but not her whole lease) was void for overstepping the bounds of chapter 92 by making her responsible for conditions affecting habitability that she did not cause, and (2) Philadelphia had not obtained a jury finding establishing that she caused the fire. The trial court granted White’s motion without specifying the grounds, and the court of appeals affirmed on the grounds that the catch-all provision (but not her whole lease) was void. 421 S.W.3d 252, 256, 258 (Tex.App.–San Antonio 2013).

II

The Court concludes that the court of appeals’ judgment must be reversed because the catchall provision is enforceable as written. I disagree. Chapter 92 dictates that landlords may not obtain promises from tenants to pay for repairs of conditions affecting habitability that the tenant does not cause. Whether written broadly (i.e., tenant pays for conditions “not due to [the landlord’s] negligence or fault”) or narrowly (i.e., tenant pays for conditions affecting habitability the tenant does not cause), a promise is void to the extent it violates this dictate. Accordingly, the only way a broadly worded promise like that found in the catch-all provision can be enforced is if it is severed or divided, which has not occurred here.

A promise is void if either its formation or performance is prohibited by statute.2 *499 In the first instance, a statute may prohibit, either expressly or impliedly, the making of a certain kind of promise, even though its performance may otherwise be lawful.3 A law that prohibits contracting on Sundays is an example of this type of statute.4 A promise made in contravention of this type of statute is void from the very outset because it entails a direct abuse of the freedom to contract.5

Secondly, a statute may prohibit the doing of a certain thing, like speeding.6 Whether a promise is void because its performance violates this type of statute depends on whether the unlawful act was required by the promise—that is, whether the freedom to contract was harnessed towards an unlawful end.7 For example, a promise to transport goods at an unlawful speed—whether appearing on the face of a contract or through extrinsic facts—is void.8 However, a promise to transport goods will not be declared void simply because the carrier speeds while performing the promise.9 In Lewis, we summarized this distinction as follows:

A contract to do a thing which cannot be performed without a violation of the law is void. But where the illegality does not appear on the face of the contract it will not be held void unless the facts showing its illegality are before the court.... A contract that could have been performed in a legal manner will not be declared void because it may have been performed in an illegal manner.10

Drawing on Churchill Forge, the Property Code restricts parties’ freedom to contract over certain matters—namely, repairs to conditions affecting habitability that the tenant does not cause.12 Accordingly, the catch-all provision is void to the extent it purports to contract over this matter.13

The only way the catch-all provision can be enforced then is if the singular promise made by the catch-all provision (i.e., the promise to pay for repairs to any condition “not due to [the landlord’s] negligence or fault”) is severed or divided into two separate promises—one legitimate promise to pay for repairs the landlord does not have a duty to make, and one illegitimate promise to pay for repairs the landlord has a duty to make.14 Having severed or divided the provision so, we could enforce the unoffending promise. Philadelphia never requested the trial court or court of appeals do this, however.

But even if Philadelphia had requested severance or division, it would not have saved Philadelphia from its failure to obtain jury findings on the cause of the fire. As part of its breach-of-contract claim, Philadelphia would have borne the burden of proving and obtaining a finding that White breached her unoffending promise (i.e., to pay for repairs of conditions she caused) by causing the fire. Because Philadelphia never proved or obtained that finding, it necessarily failed to make out its breach-of-contract claim.

By treating the catch-all provision as enforceable as written, the Court confers a benefit on parties whose contracts do not conform to chapter 92 of the Property Code: it allows them to avoid obtaining jury findings on causation, which they otherwise must obtain. Neither chapter 92 nor our precedent can be construed to reach this result.15

III

The plaintiff always bears, in the first instance, the burden of proving its cause of action. Here, Philadelphia sought to meet its burden by proffering a lease that was unlawfully overbroad on its face. Philadelphia asserted that, in spite of its overbreadth, the lease could be applied lawfully in this case because White caused the fire. Yet Philadelphia never proved that. Accordingly, Philadelphia never proved that *501 White breached her promise to pay for conditions affecting habitability she caused—the only enforceable promise White could make. Because the Court nonetheless concludes that Philadelphia can potentially recover on its breach of contract claim, I respectfully dissent.

Footnotes

1

The other grounds included lack of consideration, unconscionability, violation of the fair-notice doctrine, and improper establishment of a new strict-liability theory.

2

In this opinion, references to tenant cause include conditions caused by a lawful occupant in the tenant’s dwelling, a member of the tenant’s family, or a guest or invitee of the tenant. See TEX. PROP. CODE § 92.052(b).

3

The parties also touch on White’s other contract-avoidance defenses, but the court of appeals did not consider those issues, and we decline the invitation to address them at this time.

4

Above the signature block, the lease prominently states that the lease can be modified by agreement of the parties, but neither party requested modifications to the Reimbursement Provision’s terms.

5

The Texas Apartment Association, the Texas Tenants’ Union, and Southern Methodist University’s Civil Legal Services Clinic.

6

Whether characterized as a matter of contract illegality, as the dissenting justices assert, or a matter of public policy, as presented by the parties and determined by the court of appeals, the question is whether the Texas Property Code, expressly or implicitly, prohibits the parties’ cost-shifting agreement. If either, the agreement contravenes public policy. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 (Tex.2008) (recognizing that agreements the Legislature has declared illegal are against public policy).

7

This portion of the Reimbursement Provision generally tracks Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 372 (Tex.2001) (observing that the specific conditions “resemble those tenant-caused conditions which a landlord [otherwise] has no [statutory] duty to repair, or pay to repair”).

8

JUSTICE DEVINE’s insistence that the Reimbursement Provision is facially void reflects a fundamental misunderstanding of the distinction between a contract provision unenforceable as written and one that is capable of being enforced as written. See Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217, 221–23 (4th Cir.2014) (rejecting argument that arbitration provision was wholly unenforceable because its language encompassed rights and remedies made nonwaivable and nonarbitrable; statute making arbitration agreements for such claims invalid and unenforceable was an exception to enforcement and party opposing arbitration had burden of establishing exception).

9

White’s lease requires that all notices and requests be in writing “except in case of fire, smoke, gas, explosion, overflowing sewage, uncontrollable running water, electrical shorts, crime in progress, or fair housing accommodation or modification.”

10

Language we employed in Churchill Forge, 61 S.W.3d at 370 (noting that questions of tenant negligence and causation were not presented).

11

This point is illustrated by a later-enacted provision in the subchapter governing security devices. Though landlords generally have a duty to pay the cost to repair or replace a security device, the tenant can contractually assume responsibility for repairs resulting from misuse or damage by the tenant or an affiliated party. 92.053 but as an equivalent legislative expression regarding the burden of proving the cause of damage to a demised dwelling.

12

The significance of the jury’s failure to find in relation to White’s burden of proof involves an abstruse concept. An example employing a less abstract scenario may be helpful in illustrating the point. Consider a situation in which a party bears the burden of proving there is no life on Mars, but the jury question inquires “Do you find by a preponderance of the evidence that there is life on Mars?” The jury’s negative finding does not establish the converse—that there is no life on Mars—but merely reflects a failure to carry the burden of persuasion as to the presence of life on Mars. But even supposing a failure to find could be construed as establishing the obverse, it would not do so if the jury question interconnected two distinct inquiries, such as “Do you find by a preponderance of the evidence there is life and water on Mars?” The jury’s negative response could be attributed to a failure to persuade as to one element or both. While there may be situations when the evidentiary record conclusively establishes one or the other, absent such circumstances, the party bearing the burden of obtaining an affirmative finding that there is no life on Mars lacks the fact findings necessary to do so.

1

The Court actually holds that “public policy embodied in the Property Code” would preclude the landlord from enforcing the contract. Ante at 476. Although the difference may be subtle and does not affect the outcome in this case, I do not agree that “public policy” should govern our analysis. Because the Property Code expressly addresses the lease provisions at issue, the issue is whether the statute–as opposed to “public policy”–renders the lease agreement unenforceable.

We have often explained that “parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy.” Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1118 (1921) (contract to sell custody of child). But in all of these cases, no statute specifically prohibited the contractual agreement, so we found the contract unenforceable for public policy reasons.

Certainly, “it is by now axiomatic that legislative enactments generally establish public policy.” Woolsey v. Panhandle Ref. Co., 131 Tex. 449, 116 S.W.2d 675, 678 (1938) (“[A]n agreement which violates a valid statute is illegal and void.”).

The Court identifies the issue here as “whether public policy embodied in the Texas Property Code precludes enforcement of a residential-lease provision,” ante at 471, and concludes that it “cannot say the contract is unenforceable on public-policy grounds,” ante at 471; see also ante at 476 (stating that the issue is “whether the agreement runs afoul of public policy embodied in the Property Code”). I believe we should decide whether the agreement violates the statute, and we need not engage in the less certain exercise of determining whether the agreement violates public policy as reflected in the statute.

2

This exception for tenant-caused conditions does not apply if the condition results from “normal wear and tear.” TEX. PROP. CODE § 92.052. Since no one claims that the fire damage at issue here resulted from “normal wear and tear,” this exception to the exception is not at issue.

3

The Court suggests that the evidence establishes that White “overload[ed]” the dryer with materials that contained “cooking oils,” contrary to the warnings in the dryer’s instruction manual. Ante at 472. The jury, however, heard all this evidence and found that White did not negligently cause the fire. Perhaps, as the Court suggests, the jury believed White non-negligently caused the fire, but it is difficult to imagine how the jury could have concluded that White non-negligently caused the fire by overloading the dryer with items containing cooking oils contrary to the manual’s instructions. In any event, for purposes of resolving the issue before us, it is enough to say that “no witness was able to explain how the fire inside the dryer drum started,” ante at 490, and the jury was not asked whether White non-negligently caused the fire.

4

See also Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex.1972) (holding that the initial burden to establish a homestead exemption is on the party claiming the exemption).

5

The Court also suggests that the later-enacted section 92.052.

1

On appeal, Philadelphia asserts that a malfunction in White’s dryer caused the fire—a cause its own expert purported to rule out at trial. While White did first notice the fire in her dryer, there is evidence that neither White nor her dryer actually caused the fire. Specifically, there is evidence that White’s landlord installed her dryer; that Philadelphia’s expert believed her dryer was functioning properly when the fire started; that the only material in a sample taken from her dryer after the fire was cotton; that cotton ignites at a temperature at least one hundred degrees higher than the temperature at which a properly-functioning dryer operates; that no ignitable liquids were present on the cotton in her dryer; that the apartment’s electrical outlet sparked on the first attempt to connect the dryer and tripped the apartment’s breaker; that the fire department did not inspect the apartment’s electrical system; and that Philadelphia’s expert testified prior to trial that he did not rule out the apartment’s electrical system as the cause of the fire.

2

See Tubb v. Kramer Bros. Nurseries, 237 S.W.2d 680, 681 (Tex.Civ.App.–Waco 1951, writ ref’d n.r.e.) (recognizing contracts may be illegal because they are “made in violation of the express provisions of a statute” or because they “cannot be performed without such violation”).

3

See 5 RICHARD A. LORD, WILLISTON ON CONTRACTS § 12:1, at 727–40, 744–53 (4th ed.2009) (hereinafter WILLISTON) (recognizing that a promise to do an act that would violate a statute is unenforceable, but also recognizing that many acts which themselves do not violate a statute may still not be made the subject of a contract); JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS § 343, at 726–27 (2nd rev. ed.1974) (hereinafter MURRAY) (distinguishing between statutes “which expressly, or by implication, prohibit the making of a contract” and those “which prohibit the doing of specified things, which may become the subject-matter of a contract”).

4

See 15 GRACE MCLANE GIESEL, CORBIN ON CONTRACTS § 82.1, at 237–43 (Joseph M. Perillo ed., rev. ed.2003); MURRAY § 343, at 726.

5

See, e.g., Am. Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397, 399 (1921) (concluding that provision in insurance policy which was “repugnant to the mandatory statute” and “destroy[ed] a benefit to the insured which the statute was designed to guarantee” was “void”); see also MURRAY § 343, at 726 (“[I]t is clear that a bargain entered into in violation of th[is type of] statute is illegal, and this is so whether or not the statute expressly declares it to be illegal.”).

6

See 5 WILLISTON § 12:1, at 726–40, 744–53.

7

Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 148–49 (1947).

8

See id.

9

See id.

10

Id. (citations omitted) (quoting another source) (internal quotation marks omitted).

11

See TEX. PROP. CODE §§ 92.006(c) (providing that landlord’s duty to repair conditions affecting habitability not caused by the tenant “may not be waived,” except in circumstances not present here), 92.0563(b) (authorizing an award of actual damages, statutory penalties, and attorney’s fees for knowingly “contracting orally or in writing with a tenant to waive the landlord’s duty to repair”).

12

92.0563(b).

13

See, e.g., Am. Nat. Ins., 230 S.W. at 399.

14

See RESTATEMENT (SECOND) OF CONTRACTS § 184 (1981).

15

The Property Code’s authorization of an award of actual damages, statutory penalties, and attorney’s fees against a landlord who knowingly violates chapter 92 by “contracting orally or in writing with a tenant to waive the landlord’s duty to repair” strongly suggests that the Legislature did not intend the Court to provide a benefit to a landlord who unknowingly violates chapter 92. TEX. PROP. CODE § 92.0563(b). Because Justice Boyd’s approach also avoids conferring a benefit on parties whose contracts do not conform to chapter 92, I join his dissent.

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