Sunshine Jespersen v. Sweetwater Ranch Apartments and CNC Investments, LTD, LLP , 390 S.W.3d 644 ( 2012 )

AHlRIz Opinion issued flecember 5. 2012.
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No. 05-1l-00583-C’
SUNSHINE JESPERSEN, Appellant
V.
SWEETWATE R RANCH APARTMENTS AND
CNC IN VESTMEN1’S, Lii), ULP, Appellees
On Appeal from the 14th Judicial District Court
i)allas County, Texas
Trial Court Cause No. 09-02799-A
OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Fillmore
Sunshine Jespcrsen appeals the trial court’s judgment in favor of Sweetwater Ranch
Apartments and (‘NC Investments, Lid, LLP (collectively appellees). In seven issues, Jespersen
contends the trial court erred by (1) granting surnrnaryjudgment in favor of appellees on Jespersen’s
claims based on pregnancy and disability discrimination, violation of section 92.0081 of the property
code, and breach of contract, and on appellees’ counterclaim for breach of contract; (2) awarding
appellees attorney’s fees; and (3) awarding appellees court costs related to the taking of videotaped
depositions and obtaining copies of depositions. We affirm the trial court’s judgment.
Background
On February 29. 2008. Jespersen was hired to work as a leasing agent for CNCa property
management company that provided on-site management and staff to Sweetwater Ranch, an
apartment complex. In Mardi 2008, Jespersen signed a lease for an apartment at Sweetwater Ranch
and received a discount on the rent because she was employed by CNC.
There were positions at Sweetwater Ranch for a property manager. an assistant manager, and
two leasing agents. In 2008, CNC was having difficulty filling the positions. According to
Jespersen, when she started work, she was the only full time employee in the office at Sweetwater
Ranch and was required to work overtime “all the time.” Employees from other properties assisted
at Sweetwatcr Ranch. One of these employees, Sarah McMillan, worked as the acting manager at
Sweetwatcr Ranch between March 2008 and July 2008. MeMillan was pregnant at the time.
McMillan confirmed Sweetwater Ranch was short-staffed and that she worked every day.
ShortLy after Jespersen started working at Sweetwater Ranch, she learned she was pregnant
with twins. On April 14, 2008, Jespersen saw Dr. Asuneion Acosta for an upper respiratory
infection. Dr. Acosta provided a note stating Jespersen needed “at least 2 days off within 7 days
period.” After receiving Dr. Acosta’s note, CNC provided Jespersen with two days off during every
seven-day period.
On May 15,2008. Jespersen saw Dr. lCimberlyChesshir, an obstetrician. At some point after
the visit Jespemen requested to work twenty hours per week. Jespersen admitted she did not have
a note from Dr. Chesshir restricting her work schedule to twenty hours per week, but stated Chesshir
prescribed limited activity during the office visit. According to Jespersen, she informed Pam
Lindsey, CNC’s regional supervisor, of Dr. Chesshir’s orders, and Lindsey responded that she
needed two full-time employees. Lindsey, however, recalled Jespersen saying “it was too much, too
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stressful for her, she couldn’t do it anti that she was quitting” and that Jespersen left “right then.”
On May 23, 2008, Lindsey completed a Personnel Change Form that stated Jespersen quit without
notice and was not eligible to be rehircd.
Jespersen subsequently requested three weeks of medical leave. Lynda Goldstein, CNC’s
human resources director, testified that Jespersen had not been employed a sufficient period oftime
to be eligible for sick leave or for leave under the Family Medical Leave Act (FMLA). CNC,
therefore, treated Jespersen as resigning because she was required to take medical leave. According
to Goldstein, this designation allowed Jespersen to be eligible to be rehired.
Tobi Beck began working as the assistant manager at Sweetwater Ranch on May 27, 2008
and resigned in October 2008 due to stress from working sixty to eighty hours per week. Beck
testified it would have been helpful to have somebody working twenty hours per week to answer the
phones. At Lindsey’s direction, Beck sent Jespersen a letter on May 29, 2008 stating that, effective
June 1st, Jespersen’s rent would be $956 per month “due to the fact ofemployment separation with
CNC” and that there was balance due of $225.00 for a security deposit. On June 17, 2008,
Sweetwater Ranch sent Jespersen a notice that she still owed $221 for June’s rent
On June 19,2008, Jespersen sent an email to Dada Miles, CNC’s regional vice-president
about the June 17th notice. In the email, Jespersen indicated she had been told “two weeks ago” by
her doctor that she could return to work if she did not work “a lot of overtime,” but Lindsey would
not allow Jespersen to return to work. Jespersen told Miles that Beck said she was working by
herself and no one had been hired for Jespersen’s position. Miles asked Jespersen to obtain a
doctor’s note for a full release to return to work without restrictions. Pursuant to CNC’s policies,
any employee returning from medical leave of more than two days was required to provide a note
from the employee’s doctor.
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\Vhen she was hired, .lespersen received a job description for the Ieasmg auc nt position that
stated the physical demands of’ the job included “constant walking. 6oldstein prepared the job
description in either 2000 or 21)07 based on an existing job description, her knowledge from working
fbr a property management company, and conversations about the leasing agent job with ten or
fiFteen employees oICNC. including its regional supervisors and vicepresidents. She also received
input on the job description from individuals belonging to a human resources association comprised
of’ “property management people.
Jespersen, however, testified that she was not required to walk constantly in her job at
Sweetwater Ranch. McMillan also testified that leasing agents were not constantly walking.
According to Kimberly Kennedy, Sweetwater Ranch’s property manager in lebrtiary 2008. a leasing
agent walked several hours during the day, hut did not walk eight hours per day. Beck testified that
a leasing agent’s main job was to walk prospective tenants around the property, hut a leasing agent
was not required to walk constantly. Beck also testified, however, that the amount of walking
required of a leasing agent varied on a daily basis. Some days were spent entirely in the office; some
days, the leasing agent spent “every minute” showing apartments, was walking constantly, and
climbed a lot of stairs.
On June 26, 2008, Jespersen obtained a note from Dr. Chesshir stating that she could return
to work forty hours per week, was not restricted, and could do “some walking.” According to
Goldstein. the job description for a leasing agent required constant walking and, with restrictions on
her ability to walk, Jespersen could not do long periods of walking that might be required on any
particular day. Jespersen also could not do marketing, inspection, and comparison of other
properties. Miles testified a leasing agent could perform the job doing some walking, but admitted
that, if Sweetwater Ranch was not fully staffed, a leasing agent would be required to do more
nalkiiw. Accordine to Goldstein. she and Miles aerced that, based on the ob descnption, property
neLds and si 11mg issuLs, Swcetn ater Ranch also needed Ic smg agents r ho wet e availabic to ork
overtime. Goldstein and Miles discussed the situation and did not believe that Jespersen had been
released to work within the job requirements. CNC did not reinstate Jespersen because she was
unable to provide a lull release from her doctor.
At some point, Jespersen called Miles and asked if. because Jespersen’s position had been
filled, she had been terminated. Miles responded that Jespersen was terminated when her doctor said
she could not work and Jespersen left the Sweetwater Ranch ollice. Jespersen indicated her doctor
had said she could work only twenty hours per week and Lindsey said she needed two full-time
leasing agents. Jespersen then asked what the “paperwork” stated about the reason lbr her
termination. Miles stated she had not seen the paperwork.
Jespersen then spoke to Goldstein and asked if her position had been filled. Goldstein
responded that someone had been hired .Je spersen asked if that meant she had been terminated.
Goldstein responded that Jespersen had resigned tbr medical reasons and was eligible to be rehired.
Jespersen denied that she had resigned. Goldstein stated that Jesperson had to take medical leave,
and CNC considered an employee on medical leave who was not covered by FMLA to have
resigned. Jespersen said she did not have to take leave because she was available to work twenty
hours a week. Goldstein stated they did not have any part-time positions available.
On July 9, 2008, Jespersen sent an email to Sweetwater Ranch giving notice that she would
vacate her apartment on August 9th. On July 11, 2008, Beck saw Jespersen moving her belongings
out of the apartment. On July 16, 2008, Beck received notice that Jespersen’s check for the July rent
had been returned due to insufficient ftLnds. Pamela White, the manager of Sweetwater Ranch in
July 2008, and Beck then went into Jespersen’s apartment to confirm she had moved out of the
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apartment. 1 here was trash, hut no furniture, in the apartment and there was some (larnagc to the
apartment that needed to he repaired. Beck posted a notice inside the front door of the apartment
statmu Sweetwater Ranch considered the apartment to be abandoned. Jespersen (11(1 not respond to
the notice, Beck also assessed charges for cleaning and repairing the apartment. On July 24, 2008,
Jespersen brought her cable box to Sweetwater Ranch’s office. According to Jespersen, she planned
to clean the apartment that day, but Beck said she could not return to the apartment. At Lindsey’s
instruction, Heck then had the locks to the apartment changed.
Jespersen tiled this suit alleging appellees had breached the lease by locking her out of the
apartment and overcharging her for certain fees.’ Jespersen subsequently amended her petition to
allege additional claims for pregnancy and disability discrimination aH(l for violation of section
92.008 I of the property code. Jespersen filed a no-evidence motion for summary judgment on
appellees’ counterclaim for breach of contract on grounds appellees had no evidence it tendered
performance, that Jespersen breached the contract, or that appellees suffered any damages.
2
Appellees filed a combined traditional and no—evidence motion for summary judgment on
Jespersen’s claims. As to Jespersen’s pregnancy and disability discrimination claims, appellees
moved for summary judgment on grounds (1) Jespersen had no evidence she was qualified for the
leasing agent position or that appellecs treated any non-pregnant or non-disabled employees more
favorably, (2) Jespersen had no evidence she was disabled or that appellees regarded her as disabled
and the summary judgment evidence conclusively established appellees did not regard Jespersen as
On October 23, 2008. Jespersen filed a complaint with the Texas Workforce Commission complaining of sex and disability
discrimination.
On July 6. 2009. the FWC dismissed the complaint because it was unable to conclude the information obtained established any
statutory violation.
The TWC notified Jespersen that she a had a right to file a civil action based on the allegatiotis.
Jespersen also tnoved for summary judgment on grouttds appellees had no evidence to support nineteen affirmative defenses,
We will address
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these affirmative defenses only if necessary to the resolution of an issue on appeal.
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disabled: and (3 Jeseoen had no c’ idence to rebut appeliecs’ lcgitinate. nondiscriiiiinatorv
reasons for its employment actions. Appellees sought summary udginent on Jespersen’s claim fbr
violation of Sectiofl 92UUX I of the property code on grounds (it Jcspersen had no evidence she was
lockedout of the apartment or was not provided proper notice under the statute, and (2) the summary
iudgment evidence established Jcspcrsen abandoned I he apartment. Finally. appellces moved thr
summary judgment on its counterclaim for breach of contract and on Jespersen ‘s claim fbr breach
of contract on grounds the evidence established as a matter of law that Jespersen breached the lease
and appellees did not breach the lease.
Jespersen filed a traditional motion for summary judgment on her pregnancy discrimination,
breach of contract, and violation ol’ the property code claims and on appellees’ counterclaim for
breach of contract. As to her pregnancy discrimination claim, Jespersen argued the evidence
established as a matter of law that she was terminated because of conditions related to her pregnancy.
She also contended she was entitled to summary judgment on her claim for breach of contract and
appellees’ counterclaim lbr breach of contract because the evidence established she fully performed
under the agreement and that appeflees breached the lease agreement by locking her out of her
apartment. Finally, she asserted her claim tor a violation of the property code was established as a
matter of law because appellees changed the locks on her apartment and did not post the notice
required by section 92.008 1.
The trial court granted appellecs motion for summary judgment, dismissed Jespersen’s
claims, and found that Jespersen was liable to appellees for breach of contract. The trial court
ordered that “[a]ttorneys’ fees and damages associated with Jespersen’sj breach of contract shall
be assessed at a hearing to be set by the Court.” Appellees filed a request for assessment of damages.
attorney’s fees, and costs, relying on evidence attached to the request and to appellees’ motion for
summary judgment. icspersen filed a response to appetite’s request. but o(Thred no additional
evidence. After a hearing, the trial court awarded appellees $3,421 .38 as damages for Jespersen’s
breach of contract, $21,023.03 for attorney’s fees, and $8,029.45 for costs.
Summary Judgment
In her first five issues, Jcspcrscn argues the trial court erred by granting summary judgment
on Jespcrsen’s claims based on pregnancy and disability discrimination, violation ofsection 92.0081
of the property code, and breach ofcontract, and on appellees’ counterclaim for breach of contract.
Standard ofReview
We review a summaryjudgment de novo. Travelers Ins. Ca v. Joachl,n, 315 S.W.3d 860,
862 (Tex. 2010). The standards of review for traditional and no-evidence summary judgments are
well known. See Timpte India., Inc. v. Gish, 286 S.W.3d 306,310 (rex. 2009); Nixon v. Mr. Prop.
MgmL Ca, 690 S.W.2d 546,548 (Tex. 1985). With respect to a traditional motion for summary
judgment, the movant has the burden to demonstrate that no genuine issue ofmaterial fact exists and
it is entitled to judgment as a matter of law. TEX. It Civ. P. 166a(c); Nixon, 690 S.W.2d at 548—49.
We review a no-evidence summary judgment under the same legal sufficiency standard used to
review a directed verdict. Gish, 286 S.W.3d at 310; see also Thx. R. Cw. P. 166a(i). To defeat a
no-evidence summaryjudgment, the nonmovant is required to produce evidence that raises a genuine
issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also
TEX. R. Civ. P. 166a(i).
In reviewingboth a traditional and a no-evidence summaryjudgment, we review the evidence
in the light most favorable to the nonmovant Smith v. O’Donnell, 288 S.W.3d 417, 424 (rex.
2009); 20801. Inc. v. Parker, 249 S.W.3d 392,399 (rex. 2008). We credit evidence favorable to
the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant
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unless re sonable jurors could not. Tlatiii ha,,L/o,! .Stci,i & iijp :1dvisu,c. liu v. I ieldi,ir. 2XQ
W.3d 844, 848 (fex. 2009) (iish, 286 S.W.3d at 310,
When both sides move for summary judgment on the same issues and the trial court grants
one motion and denies the other, we consider all the swnmarv udumcnt evidence and ne leonine all
issues presented. Fielding, 289 S.W.3d at 84$, Valence Operating Cu. v. J)orsett, 164 SW.3d 656,
66 I (Tex. 2005). lithe trial court erred. we render the judument it should have rendered. I)o,ce!t.
164 S.W.3d at 66!. When a trial courts order granting summar judgment does not specify the
grounds relied upon, we must affirm the summaryjudgment ifany of the summaryjudgment grounds
are meritorious. foe ,‘. lii’o i’hirtv Nine Jo,,,! Ven!u,’e. 145 S.W.3d I 50, I 57 (Tex. 2004) .4KB
Hendrick, LPv. MusgraveEnter.s., Inc., 380 S.W.3d 221,230—31 (Tex. App—Dallas 2012, no pet.).
Discrinii,iaiioii ( buns
In her first two issues, Jespersen contends the trial court erred by granting suinniary judgment
on her claims for pregnancy and disability discrimination because she presented a prima fãcie case
of (liscrimination. presented more than a scintilla of evidence on every challenged element, and
genuine issues of material fact preclude summary judgment. Jespersen brought her claims for
pregnancy and disability discrimination under the Texas Commission on Human Rights Act
(TCHRA). See Tux. LAB. CoDE ANN. §‘ 21.001—556 (West 2006 & Supp. 2012). The TCHRA
“is a comprehensive fair employment practices act and remedial scheme, modeled after Title VII of
the federal Civil Rights Act of 1964 (Title VII), that provides the framework for employment
discrimination claims in Texas.” Prairie View A&M Univ. v. (‘hat/ia, No. 10-0353, 2012 WL
3800321, at *1 (Tex. Aug. 31, 2012). “The TCHRA was ‘enacted to address the specific evil of
discrimination and retaliation in the workplace,’ as well as to coordinate and conform with federal
anti-discrimination and retaliation laws under Title Vii.” Id. at *2 (citing City oJ Waco v. Lopez, 259
S.W.3d 147. 153-55 (‘rex. 2008)). The purposes ofthe TCI IRA include providing for the execution
of the policies of Title Vii and its subsequent amendments and of Title 1 of the Americans with
Disabilities Act of 1990 and its subsequent amendments. Tiix. Lw. CoDE ANN. § 21.001(1), (3)
(West 2006). Although we consider the TCNRA’s plain language and state precedent in interpreting
the statute, we also look to federal Jaw for guidance in situations where the TCHRA and Title VII
contain analogous statutory language. Chatha, 2012 WL 3800321, at *2 (citing Specialty Retailers,
Inc t’. Dc Moranwille, 933 S.W.2d 490,492 (rex. 1996) (per curiam)).
Under the TCNRA,
An employer commits an unlawful employment practice if because of race, color,
disability, religion, sex, national origin or age the employer:
(I) Ibils or refuses to hire an individual, discharges an individual, or discriminates in
anyothermanner against an individual in connection with compensation or the terms,
conditions, or privileges of employment: or
(2) limits, segregates, or classifies an employee or applicant for employment in a
manner that would deprive or tend to deprive an individual of any employment
opportunity or adversely affect in any other manner the status of an employee.
TEX. LAB. CODE MN. §21.051 (West 2006). Discrimination on the basis ofsex includes pregnancy
Id. § 21.106(a). The employee may establish discrimination by either direct evidence of what the
employer said or did or by circumstantial evidence of discrimination. Mission Consot Indep. Sch.
Dial. v. Garcia, 372 S.W.3d 629, 633, 638 (Tex. 2012); Quantum Chem. Cop. v. Toennies, 47
S.W.3d 473,476-77 (Fex. 2001).
PasLDia
In an employment discrimination case, if the employee produces direct evidence that
discriminatory animus played a role in the decision at issue, the burden of persuasion shifts to the
employer, who must prove that it would have taken the same action regardless of discriminatory
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am runs. Iii it aici’Iwu.vc . 11O/?kIIIS, 490 ( .S. 228. 22 ( I 089f (iIid,VtU1 V. ( ‘B Ru/turd El/n,
Inc., 309 F. d 893. 896 (5th Cir, 2002) Jespersen argues she presented direct evidence of
discrimination through evidence appellees knew she was not working because she was pregnant and
that she was nut allowed to return to work because Dr. Chesshir’s note allowed univ “some
waiking’
I )irect evidence of discrimination is evidence that, if believed, proves the flict of
discriminatory animus without inference or presumption. Sandsiad, 309 F,3d at 897. Ifan infirence
is required ftr the evidence to be probative as to the employer’s discriminatory animus in making
the employment decision, the evidence is circumstantial, not direct. hi. at $9798. Statements that
courts have found to he direct evidence of discrimmation have tended to he insults or slurs against
the protected group. See Davis v, Chevro,i USA,, mc,. 14 F.3d 1082. 1085 (5th Cir. 1994); Martin
i’. Bay/and Itic’., 403 F. Supp. 2d 578, 582 (Si). Tex. 2005), a/i’d, 181 Fed. Appx. 422 (5th Cir. 2006)
(per curiam).
Jespersen produced no evidence that was told she would not be reinstated because she was
pregnant or that anybody associated with appellees made negative comments about her pregnancy.
The evidence relied upon by Jespersen requires an inference or presumption that she was not
reinstated because she was pregnant or disabled and, therefore, is circumstantial evidence. SeeAppel
v. inspire Pharms., inc., 428 Fed. Appx. 279, 282 (5th Cir. 2011) (evidence that employee was
terminated because she could not perform her job duties owing to medical complications that were
result of pregnancy was not direct evidence of discrimination).
Circumstantial Evidence
In the absence of direct evidence of discrimination, the employee must make out a prima
facie case of discrimination under the McDonnell—Douglas burden shifting analysis. McDonnell
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l)icla, Crap. s. Grec;,. 4 I I U.S. 702. 802 05 (1 073: .si’e (([‘a) R(LTCS L. 5t(/i(Jc(.Sofl Hunlf)nnz
Piac/s Inc 0 L S I 3 142—4 (2000) 4/u ha 11 (ity of I)allas 314 S W 3d 687 690 91 (1 cx
App. DalIa’s 2010, no pet.) (applying Mc/h)111iclL/)U1i/US analysis to disability discrinination
claim underTCHRA); Janssen Pharms., Inc. v, Martinez, 296 S.W.3d 634,641 (Tex. App.—El Paso
2009, no pet. (applying Mc’I)o,uic’IIl)vugIas analysis to pregnancy discrimination claim under
TC[IRA). Under this analysis, the employee is entitled to a presumption of discrimination if she
meets the “minimal’’ initial burden of establishing a prima lhcie case o1discrirnination. Garcia, 372
S.W.3d at 634. lo establish a prima thcie case oldiscrimination, the employee must show she (1)
is a member of a protected class; (2) was qualified for her position; (3) suffered an adverse
employment action: and (4) was replaced by someone outside ot her protected class or others
similarly situated were treated more favorably (disparate treatment cases). l?eeves, 530 U.S. at 142;
.4 utoZone. Jut. v. Rcves, 272 S.W.3d 588. 592 (Tex. 2008) (per curiam); Michael, 3 14 S.W.3d at
690—91 . Once the employee makes this showing, the burden of production shifs to the employer
to articulate a legitimate, non—discriminatory reason for the adverse employment action. Reeves, 530
U.S. at 142; Je,,,iies, 47 S.W.3d at 477. If the employer meets this burden, the employee must raise
a genuine issue of material fact that the stated reason was a pretext for discrimination. Reeves, 530
U.S. at 142—43; Toennies, 47 S.W.3d at 477.
There was no evidence identifying the person who replaced Jespersen on a permanent basis
as the leasing agent at Sweetwater Ranch. Jespersen argues she was replaced on a temporary basis
by Beck, who was not pregnant, while appellees argue Jespersen was replaced by McMillan. who
was pregnant. Although neither McMillan, the acting property manager, nor Beck, the assistant
manager. were hired as a leasing agent, there was evidence they both performed some of the
functions of a leasing agent after Jespersen stopped working at Sweetwater Ranch. Therefore,
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Jespcrsen failed to produce any evidence that she was replaced by someone outside the protected
class. Further, Jespersen produced no evidence that appellecs did not require the person who
replaced her to have the ability to walk constantly and to work overtime. Because Jespersen failed
to produce any evidence that she was replaced by someone outside of her protected class or others
similarly situated were treated more favorably, she failed to establish a prima fade case of
discrimination.
Further, even ifJespersen had successfully established a prima fade case ofdiscrimination,
appellees articulated legitimate, nondiscriminatory reasons for refusing to reinstate .Jespersen’s
employment. La. Jespersen was not reinstated to the leasing agentjob because she could not perform
the duties of the job due to medical reasons and the job had been offered to another applicant See
DarLs’., 14 F.3d at 108748 (plaintiff’s physical inability to perform job was legitimate reason for not
hiring plaintiff). Jespersen offered no evidence that these reasons were a pretext for discrimination.
To raise a fact issue on the pretext element of a discrimination claim, the employee must
present evidence proving the reasons stated by the employer were not its true reasons, but were a
pretext for discrimination, or the reasons were not credible. Reeves, 530 U.S. at 143; Chandler v.
CSCApplied Technologies, LLC, 376 S.W.3d 802,814 (Tex. App.—Houston [1st Distj 2012, pet.
filed) (quoting Elgaghil i Tarrant Cnty. Junior CoIL, 45 S.W.3d 133, 139 (Tex. App.—Fort Worth
2000, pet. denied)). An employee can avoid summary judgment if the evidence, taken as a whole,
creates a fact issue “as to whether each of the employer’s stated reasons was not what actually
motivated the employer and creates a reasonable inference that [pregnancy or disability] was a
determinative factor in the actions the [employee] is now complaining about.” Chandler, 376
S.W.3d at 814 (emphasis in original) (quoting Elgaghil, 45 S.W.3d at 140); see also Little v. Tat
Dep ‘t of Criminal Justice, 177 S.W.3d 624, 632 (rex. App.—Houston [1st Dist.] 2005, no pet)
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“I lihe United States Supreme (‘onrt has made it clear that it is not sulicient merely to show that
the employer’s reasons are false or not credible; the plaintili must prove that the employer
discriminated intentional lv.” (citinv Reeees. 530 U.S. at I 4( 4]>). However, “an employer would
be entitled to judgment as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer s decision, or if the plainti Ii’ created univ a weak issue
of lict as to whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred: Reeves, 530 U.S. at 14$. The issue at
the pretext stage is not whether the employer made an erroneous decision: it is whether the decision,
even if incorrect, was the real reason for the termination. Sandctad, 309 F’.3d at 899; Mavherrv v,
Jought Aircraft (‘a.. 55 F.3d I 086, 1091 (5th Cir. 1995). The employer “is entitled to he
unreasonable so long as it does not act with discriminatory animus.” Sands’tad, 309 F.3d at 899. if
the employee intends to show the explanation is so unreasonable it must be pretextual. it is the
employee’s burden to proffer evidence creating a fact issue regarding reasonableness. Id. An
employee’s subjective belief that she suffered an adverse employment action as a result of
discrimination, without more, is insufficient to survive a summary judgment motion. Afiehael, 3 14
S.W.3d at 69192 (quoting McC’oy v. Tex. instruments, /nc., 183 S.W.3d 548, 555 (Tex.
App.-—DaIlas 2006, no pet.)).
Jespersen maintains she produced evidence that appellees’ reasons for not letting her return
to the leasing agent’s job was a pretext for discrimination through evidence the ability to constantly
walk and to work overtime were not essential functions of a leasing agent’s job and that Beck told
Jespersen on June 17, 2008 that no one had been hired for Jespersen’s position. However, CNC’s
sick leave policy required every employee who was on medical leave for more than two days to
provide a doctor’s note before being allowed to return to work. Miles asked Jespersen to provide
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a note from her doctor releasing .Jespsersen to work. Jespersen did not provide the note to CNC until
June 27, 2008. Goldstein testified the teasing agent job had been offered to another applicant and
was no longer available. Jespersen offered no evidence a leasing agent position at Sweetwater Ranch
was available after she provided Dr. Chesshir’s note to CNC.
Goldstein also testified Jespersen was not reinstated because Dr. Chesshir did not release
Jespersen for constant walking or to work more than forty hours per week. The evidence was
undisputed there were no part-time leasing agent positions at Sweetwater Ranch and that employees
at Sweetwater Ranch, including borrowed employees such as McMillan, were required to work
overtime on a regular basis. Further, the job description for a leasing agent at Sweetwater Ranch
stated the physical demands for the job included constant walking. Jespersen points to her
testimony, as well as testimony from Miles, Kennedy, Beck, and McMillan, that a leasing agent was
not required to constantly walk. However, Goldstein believed that on any particular day. a leasing
agent could be required to walk the entire day. Beck confirmed the walking requirements differed
from day to day and that, on any given day, the leasing agent might be required to walk the entire
time. Miles also confinned that, due to the fact Sweetwater Ranch was not fully staffed, more
walking could be required of a leasing agent There is no evidence Goldstein did not believe
Jespersen was unable to perform the job of leasing agent because she could not walk constantly and
could not work overtime. Further, there is no evidence any applicant for the job who was not
disabled or not pregnant, but was unable to work overtime or to constantly walk, was treated any
differently than Jespersen.
Jespersen disagrees with appellees’ decision not to allow her to return to work. However
appellees do not have the burden to prove their legitimate nondiscriminatory rationale is correct.
McCoy, 183 S.W.3d at 556; see also Little v. Republic Refining Ca, 924 F.2d 93,97(5th Cir. 1991)
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“Ihe cx istcnce ol competing evidence about the objective correctness of a lict underlying a
delendant’s proflered explanation does not in itselfmake reasonable an inference that the detendant
was not truly motivated by its prolkrcd )usti tication.’ ): Smith i. Sr Regis (aip., $50 F .Supp. I 2)6,
13 1 8 (S.D.M tS. 1 994) (noting that an honest belief in a nondiscriminatory reason for employment
decision, even if incorrect, is not discrimination). u/f ‘d. 4$ F.3d 53 I (5th Cir. 1995) (per curium).
“In other words, arguing about the accuracy of the employer’s assessment is a distraction because
the question is not whether the employers reasons tbr a decision are right but whether the
employer’s description of its reasons is JumesL’” Kariotis v. 1
\aristur Intern. 1uiisp. ((up.. I 3 1
F.3d 672, 677 (7th Cir. 1997) (emphasis in original) (quoting Gustovich v. AThT c’ommc us, Inc.,
972 F.2d $45. 848 (7th. (‘ir. 1992 )). The ultimate question for the court “is not whether an employer
made an erroneous decision: it is whether the decision was made with discriminatory motive.”
Mui’herrr. 55 F.3d at 1 091
Jespersen produced no evidence that appellees’ reasons fhr refusing to reinstate her were a
pretext for discrimination. Accordingly, the trial court (lid not err by granting appellees’ no-evidence
motion for summary judgment on Jespersens claims based Ofl pregnancy and disability
discrimination. We resolve Jespersen’s first two issues against her.
holutiou of Scctioii 92.0081
In her third issue, Jespersen contends the trial court erred by granting sum mary judgment on
Jespersen’s claim for violation of section 92.008 1 of the property code. As relevant to this case,
section 92.0081(h) of the property code prohibits a landlord from intentionally preventing a tenant
from entering the leased premises except by judicial process unless the exclusion results from (1)
bona fide repairs, construction, or an emergency. (2) removing the contents of premises abandoned
by a tenant, or (3) changing the door locks of a tenant who is delinquent in paying at least part of the
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rent. lLX. PRuI’. (()Dl. ANN. 92M0S 1(b) (West Supp. 2012), lithe landlord changes the lock of
a tenant who is delinquent in pavine the rent, the landlord lutist place a Written notice on the tenants
tront door c ontamin2 in formation about where the tenant can uet a key, thai the landlord must
provide the new key, and the amount of rent or other charges tbr which the tenant is delinquent. Id.
92.OOX 1(e. I l’a landlord violates section 92.008 I the tenant may either recover possession olthe
.
premises or terminate the lease and recover statutory penalties, actual damages, court costs, and
reasonable attorney’s fees. Id. 92008 1 (li)-(i ).
Appellees moved tor summary judgment on Jespersen’s claim under section 92.0081 on
i.rounds (1) Jespersen had no evidence that she was locked out of the apartment or that appellees
hiiled to provide the notice required by section 93.00$ I and (2) the evidence conclusively
established Jespersen abandoned the apartment before appellees changed the locks and was not
entitled to damages. .Jespersen moved for summary judgment on her claim under section 92.0081
on grounds the evidence conclusively established appellees locked her out of the apartment and
tiiled to provide the notice required by section 92.0081 The trial court granted appellees’ motion
.
and dismissed Jespersen’s claim.
Paragraph 42 of the lease between Jespersen and Sweetwater Ranch states a tenant abandons
an apartment when all of the following have occurred:
(1) everybody appears to have moved out in our reasonable judgment;
(2) clothes, furniture, and personal belongings have been substantially removed in
our reasonable judgment;
(3) you’ve been in default for non-payment of rent for 4 consecutive days, or water,
gas, or electric service for the apartment not connected in our names has been
terminated or transferred; and
(4) you’ve not responded for 2 days to our notice left on the inside of the main entry
door, stating that we consider the apartment abandoned.
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Abandonment of the apartment ends the tenant’s “right of possession 11w all purposes” and gives
Sweetnter Ranch the immediate right to clean, make repairs, and reid the apartment; determine any
security deposit deductions; and remove property left in the apartment.
The evidence conclusively established Beck saw Jespersen moving her belongings out ofthe
apartment on July 11, 2008. Jespersen does not dispute most ofher belongings were moved out of
the apartment prior to July 24, 2008. On July 16. 2008, Swectwater Ranch was notified that
Jespersen’s check for the July rent had been returned due to insufficient fluids. White and Beck
entered Jespersen’s apartment and, in their opinion, believed Jespersen had moved her belongings
out of the apartment. The lease required Sweetwater Ranch to post a notice on the inside of any
apartment that it believed had been abandoned by the tenant Beck posted this notice. Pursuant to
the lease, Jespersen had two days to dispute whether she had abandoned the apartment. Jespersen
failed to do so. Accordingly, under the lease, Jespersen abandoned the apartment prior to July 24,
2008 and no longer had any right ofpossession to the apartment. On July 24,2008, Jespersen was
told she could not return to the apartment. Sweetwater Ranch then changed the locks to the
apartment.
Asrelevanttothiscase,atenantundersection92.008l isa”personwhoisauthorizedbya
lease to occupy a dwelling to the exclusion ofall others.” TEX. PROP. CODE ANN. § 92.00 1(6) (West
2007). On July 24, 2008, Jespersen was not authorized by a lease to occupy her apartment and,
therefore, was nota tenant forpurposes of section 92.0081. Accordingly, the trial court did not err
by granting summaryjudgment for appellees on Jespersen’s claim for violation ofsection 92.0081.
We resolve Jespersen’s third issue against her.
Breach ofContract
In her fourth and fifth issues, Jespersen argues the trial court erred by granting summary
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judgment in favor ofappcllecs on their counterclaim for breach ot contract and on Jesperscns claim
tiw breach of contract. I oth parties h led motions br sumi nary j ud.!iT1ei1t on the competing breach
of contract claims, I he trial court granted appellees motion fhr sumnmry judgment. dismissed
Jespersen’s breach of contract claim, and ordered that Jespersen was liable to appellees for breach
of contract. The trial court, however, did not grant smnmarv judgment on the amount of damages
Jespersen was required to pay. Rather, after a hearing that was essentially a bench trial on stipulated
evidence, the trial court flnind both the amount of damages and attorney s ti/es that appellees were
entitled to recover.
The elements of a breach of contract claim are (1) the existence of a valid contract, (2) the
plaintifFs perkrmance or tendered performance, (3 ) Ihe deti/ndant ‘s breach of’ the contract, and (4)
damages as a result of the breach, /1KB Hendrick, LP, 380 S.W.3d at 234. Appellees moved for
summary judgment on their breach ofcontract counterclaim on grounds Jespersen breached the lease
by (1) failing to pay rent through the termination of the lease, (2) keeping a pet in her apartment
without written authorization and without paying the required pet deposit, (3) I’ailing to provide
proper notice she was moving out of the apartment, and (4) failing to pay cleaning and damage
charges and late payment fees, Jespersen admitted that she kept a pet in her apartment without the
written authorization required by the lease. Further, although the lease specifically prohibited notice
that Jespersen was moving out of the apartment from being given by email, Jespersen does not
dispute that she attempted to provide notice by email in violation of the lease provisions. Finally,
.Jespersen admitted she did not pay cleaning and damage charges and late payment fees, but disputed
the reasonableness of those fees. Accordingly, the trial court did not err by finding as a matter of law
that Jespersen was liable to appellecs for breach of contract.
Jespersen moved for summary judgment on her breach of contract claim on grounds she
established asainatter ol lan that she complied with her obligations under the lease and that
IppelleLs hteaclid the Ic is. by implopet Iv mere ismg her ient O\ erchargmg her for eleanim and
repair of the apartment. preventine her I nun cleaning the apartment, and instructing her to leave the
property. Appellees moved for summary judgment on Jespersen’s breach of contract claims on
grounds it did not improperly increase Jespersen’s rent, it charged Jespersen reasonable fifes for
cleanin2 and rcpairinu the apartment. it did not improperly exclude Jespersen from the apartment,
and Jespersen had not been damaged.
We turn first to the issue of whether the evidence conclusively established Jespersen
complied with her obligation to pay rent under the lease. Jespersen admitted her check for the Jul
2008 rent was returned for insufficient funds, but argues she did not owe any rent for July because
she had been overpaying her rent under the terms of the lease Jespersen’s lease provided for t
monthly rent ot$96. I lowever, an addendum to the lease stated Jespersen was to receive a prorated
concession of$ 157 per month and a “preferred employer discount” of $159.80 per month. Section
10 of the lease stated:
Receiving an employee discount of 20%. Resident will pay $639.20 plus utilities in
the amount of $37.00 making amount due a month $676.20. Lease will he on a
month to month basis; if employee is terminated she will 37 [sic] days to vacate
apartment.
.lespersen contends the $157 prorated concession and the $1 59.8() preferred employer discount in the
addendum were required to be deducted from the $639.20 rent in section 10 of the lease, rather than
from the market rent of $956. Based on these calculations, she contends she had a credit balance of
$426.60 in July 200$.
White testified there is generally a special rate that Sweetwater Ranch offered to prospective
tenants that was less than the market rate. The difference between the market price and the special
20—
price is considered to be a concession and a monthly discount from the market rent. Employees who
lived at Sweetwater Ranch received a twenty percent discount from the market rent. However, this
discount was sometimes taken off the special rate, rather than the market rate. Jespersen’s employee
discount was calculated this way.
The lease stated the market rate for Jespersen’s apartment was $956. Jespersen received a
monthly concession of $157, making the monthly rent.owed $799. Twenty percent of $799 is
$159.80. the amount ofthe “preferred employer discount,” making the monthly rent owned $639.20.
This is the exact amount stated in section 10 of the lease. Reading the entire lease, we conclude
Jespersen’s initial rent under the lease was $639.20. The evidence established that when Jespersen
stopped working for CNC, she was no longer entitled to the employee discount. Sweetwater Ranch
initially notified Jespersen that she also would no longer receive the concession of$ 157. However,
Sweetwater Ranch ultimately determined Jespersen would continue to receive the concession. Her
monthly rent then changed to $799 per month plus utilities. We conclude the evidence conclusively
established appellees did not overcharge Jespersen for rent.
We next turn to Jcspersen’s argument that appellees breached the lease by assessing excessive
charges for cleaning and repairing the property and by preventing her from returning to and cleaning
the apartment on July 24, 2008. The evidence conclusively established that, after Jespersen
abandoned the apartment, it was necessary to clean and perform some repairs on the apartment.
Pursuant to the lease, Sweetwater Ranch was entitled to charge Jespersen for this work, and it is
undisputed Jespersen did not pay the assessed charges. However, the trial court did not grant
summaryjudgment to appellees as to the amount ofthe fees and charges they were entitled to recover.
Rather, it held an evidentiary hearing as to the amount of damages, including the fees and charges.
Finally, as set out above, because Jespersen abandoned the apartment on July 16,2008, she was not
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entitled to return to the property on July 24, 2008.
We conclude the trial court did not err by granting summaryjudgment dismissing Jcspersen’s
breach of contact claim and determining Jespersen was liable to appellees for breach of contract
Accordingly, we resolve Jespersen’s fourth and fifth issues against her.
Attorney’s Fees
In her sixth issue, Jespersen complains the trial court erred by awarding appellees attorney’s
fees because appellecs (1) failed to plead for attorney’s fees as to Jespersen’s discrimination claims
and Jespersen did not try the issue by consent, (2) failed to disclose any calculations or evidence of
the claimed attorney’s fees in response to Jespersen’s discovery request, (3) failed to disclose an
expert opinion from a qualified witness to support the request for attorney’s fees, and (4) failed to
make a demand for attorney’s fees as required by section 38.001 of the civil practice and remedies
code. Jespersen also contends CNC was not entitled to attorney’s fees because it was not a party to
the lease.
We turn first to Jespersen’s complaint the trial court erred by not excluding appellees’
evidence of attorney’s fees. Jesperscn objected to the evidence on grounds that appellees failed to
adequately disclose theircalculation of attorney’s fees and their expertwitness’s opinion on attorney’s
fees in response to Jespersen’s request for disclosure. See TEx. R. Civ. p. 193.6 (absent finding of
good cause or lack of unfair surprise or prejudice, party who fails to timely respond to discovery
request may not introduce into evidence material that was not timely disclosed or offer testimony of
witness (other than named party) who was not timely identified). We review a trial court’s decision
to admit or exclude evidence for an abuse ofdiscretion. BayArea Healthcare Gip., Ltd v. MeShane,
239 S.W.3d 231,234 (Tex. 2007) (per curiam). The trial court abuses its discretion when it acts in
an unreasonable and arbitrary manner, or without reference to any guiding rules or principles.
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Downer Aquaniarine Operatoc, Ine, 701 SAV.2d 238, 241—42 (Tex. 1985).
the record does not contain a copy ol appellees responses to .Jespcrsen ‘5 request tir
disclosures. Without reviewing appellees’ responses, we cannot properly conclude Jespersen’s
complaint has men t See .5011105 r. (nn,n ii lvi Lan—icr L)isiplnic, 14)) S. W.3d 397, 403-04 ( hex.
App.—-l louston [14th Distj 2004, no pet.) (rejecting appellant’s complaint that trial court improperly
admitted evidence of attorney’s hes because record did not contain discovery requests in question).
The record does reflect the trial court reviewed appellees’ “Third Amended Response” and stated the
response said appel lees had “this testifying expert who will testify about the reasonable and necessary
nature ot the attorneys’ fees and expenses” incurred by appeltees. Further, the calculation of the
amount of attorney’s lees incurred by appellees is not an economic damage that is required to he
disclosed in response to a request 11w disclosure. (‘oiler i’. Flowers, No. 02- I 0-00226-C V. 20 II W L
4502203, at *4 (Tex. App.—- Fort Worth Sept. 29, 2011, no pet.) (mem. op.); Shafer v. Gullii’er, No.
14—09—00646—C V. 2010 WL 4545 164. at * II (Tex. App.—— Houston [14th Dist.] Nov. 12, 2010. no
pet.) (mem. op.). We conclude the trial court did not abuse its discretion by admitting evidence of
appehlees’ attorney’s fees.
We next turn to Jespersen’s complaint that the trial court erred by awarding appellees
attorney’s fees because appellees Ihiled to make a demand on Jespersen as required by section 38.001
of the civil practice and remedies code. We review the trial court’s award of attorney’s fees for an
abuse of discretion. Bocquet i’. 1-leiring, 972 S.W.2d 19, 20—21 (fex. 1998); B. J. 5iarez Enters. inc.
v. PNYXL.P., 380 S.W.3d 238, 248—49 (‘Fex. App.—--Dallas 2012, no pet.) (“Generally, an appellate
court reviews a trial court’s decision to award attorney’s fees for an abuse of discretion.”).
In their counterclaim, appellees sought attorney’s fees based on paragraph 32 of the lease.
This provision sfltes Unless a party is seeking exemplary punitive sentimental or peisonal-inury
damages. the prevailing party may recover from the non-prevailing party attorney’s fees and all other
litigation costs.” ‘Parties are free to contract for a fcc-recovery standard either looser or stricter than”
those in chapter 3K of the civil practice and remedies code. lnirrcosstinenic,l (isp. P :cIsi; v. K!? Home
Lone Stan LR, 295 S.W3d 650,653 (Tex. 2009). In such a case, “the tenns of the contract, not
statute, control the outcome ofthe case.” Mohican Oil & Gus. LLC v. Scorpio’s £plor. & ProJ. use.,
337 S.W.3d 310,321 (‘fez. App.—Corpus Christi 2011, pet, denied).
The lease did not require Sweetwater Ranch to comply with the requirements of chapter 38
of the civil practice and remedies code before being entitled to recover attorney’s fees. Therefore,
appellees were not required to make a demand on Jespersen for payment before seeking to recover
their attorney’s fees for Jespersen’s breach of contract.
We finally turn to Jespemen’s complaint the trial court erred by awarding CNC, a non-party
to the lease, attorney’s fees on its breach ofcontract counterclaim. Jespersen sued CNC for breaching
the lease. CNC answered, asserting a general denial followed by a number of affirmative defenses
and brought a counterclaim for breach of contract. One of the affirmative defenses raised by CNC
was that Jespersen could not recover against CNC on a breach of contract claim because CNC was
not a party to the lease. Jespersen argues CNC judicially admitted in the affirmative defense that it
was not a party to the lease and, therefore, CNC is not entitled to recover attorney’s fees on its
counterclaim. However, “[a]n affirmative defensive pleading following a general denial is not a
judicial admission.” McRoy v. Riverlake C’ountry Club, The., 426 S.W.2d 299, 303 (Tex. Civ.
App.—Dallas 1968. writ ref’d n.r.c.) (citing Strafflis v. Barclay, 147 Tex. 600,603,219 S.W.2d 65,
66 (1949)); see also Kaye/Bassman int’l Corp. v. Help Desk Now, liw., 321 S.W.3d 806, 814 n.6
(Tex. App.—Dallas 2010, pet. denied) (alternative pleading in counterclaim did not constitutejudicial
admission); Montague Cnty. v. Howard, 590 S.W.2d 833, 834 (‘rex. Civ. App.—Fort Worth 1979,
—24--
no viit) (“aftinnative defense pleading following a general denial is not a judicial admission’’).
1 herefitrc. (‘N( was not barred by its afhmiative defense from rccovcnne attorney’s fees on its
counterclaim.
\Ve conclude the trial court did not err by awarding appellees attorney’s ties on their breach
of contract counterchuni: We resolve Jespersen’s sixth issue against her.
Costs
In her seventh issue, Jespersen contends the trial court erred bY awarding appellees costs of
videotaped depositions and copies of depositions. Relying on Gunipert r. ABE Freight Si’stem, Inc.,
312 S.W.3d 237 (Tex. App. l)allas 2010, no pet.), Jespersen argues these costs are not court costs
recoverable under Texas law. S’e TFX. (‘lv. PRM’. & REM. (‘01W ANN. 3 I .007(b) (West 200S).
Appellees respond that they sought to recover litigation costs under the lease and are not limited to
court costs recoverable tinder section 3 I .007 of the civil practice and remedies code. “Awarding costs
is largely a matter of trial court discretion.” (Jumpert, 312 S.W.3d at 239. We must uphold the trial
court’s decision unless, after searching the record, it is clear the court’s decision was arbitrary and
unreasonable. 1(1.
Under section 32 of the lease, the prevailing party is entitled to recover “attorney’s fees and
all other litigation costs.” Litigation costs are not necessarily synonymous with court costs. See
Shook r. Walden, 304 S.W.3d 910, 925 (Tex. App.—Austin 2010, no pet.) (noting that section
Jespersen did not argue in the trial cowl, and dues not assert on appeal. that appellees failed to segregate their fees hetss ccn the claims br
discrimination and for breach ofeontract. Jespcrsen, therefore, has waived any objection to appellees’ failure to segregate their fees. See Green In! ‘I,
inc. v. Solis. 951 5.W.2d 384, 389 (‘fex. 1997) (in the absence ofan objection to the fact that attorney’s fees tre not segregated as to specific claims,
objection is waived) Accordingly, because we conclude the trial court did not err by awarding appellces’ attorney’s fees on the breach of contract
counterclaim. o e need not address Jespcrsen ‘s complaint the trial court erred by awarding attorney’s fees based on the discrimination claims. See
‘rtx, R. At’s. P. 47 I.
—L
42.001(5) of the civil practice and remedies code defines litigation costs to encompass more items
than those included as costs under section 31.007 of the code). We conclude the trial court did not
abuse its discretion by tinding thc contractual provision for the rccoveiy of litigation costs
encompassed the requested deposition costs. We resolve Jespersen’s seventh issue against her.
We conclude the trial court did not err by granting summary judgment for appellces on
Jespersen’s claims for pregnancy and disability discrimination, violation of the property code, and
breach of contract. The trial court also did not err by awarding appellees summary judgment on their
counterclaim for breach ofcontract orby awarding appellecs’ attorney’s fees and costs relating to the
taking of videotaped depositions and obtaining copies of depositions. We affirm the trial court’s
judgment
ROBERT M. FILLMORE
JUSTICE
1 l0583F.P05
—26—
Qtuirt nf Appat
2fIftI! 1Utrirt nf rxas at a1hu
JUDGMENT
SUNSH INE J ESPERSEN, Appellant Appeal from the 1 4th Judicial District Court
of Dallas County, Texas. (Tr.Ct.No. 09—
No. 05-11 -005X3-CV V. 0279)-A).
Opinion delivered by Justice Fillmore,
SWEETWATER RANCH APARTMENTS Justices Moseley and Myers participating.
AND CNC INVESTMENTS, LTD, LLP,
A ppel lees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees Sweetwater Ranch Apartments and CNC
Investments. Ltd. LLP recover their costs of this appeal from appellant Sunshine Jespersen.
Judgment entered December 5, 2012.
ROBERT M. FILLMORE
JUSTICE.