Betty Getters v. the Baytown Housing Authority , 430 S.W.3d 578 ( 2014 )

Reversed and Rendered and Majority and Concurring Opinions filed April
30, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00045-CV
BETTY GETERS, Appellant
V.
BAYTOWN HOUSING AUTHORITY, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1017979
MAJORITY OPINION
Betty Geters appeals from a judgment favoring Baytown Housing Authority
(BHA) in its forcible detainer action against her. In its judgment, the trial court
awarded BHA possession of an apartment Geters had leased. In her sole issue,
Geters contends that the trial court erred because the record does not contain
evidence that BHA provided her with a notice to vacate that complied with Texas
Property Code section 24.005. Among other responses, BHA contends that
Geters’ appeal is moot because her lease has expired and thus she does not have a
potentially meritorious claim to possession of the property. Finding we indeed
have jurisdiction, we reverse the trial court’s judgment and render judgment
favoring Geters.
Background
BHA operates Dezavala Courts,1 a federally-subsidized, multi-family
housing project where Geters lived for approximately 41 years. Effective January
1, 2012, Geters and BHA executed their most recent lease agreement, a one-year
written lease. The lease agreement included provisions requiring management
approval before anyone else would be allowed to live in the apartment and
specifically mandating that no one besides Geters herself could stay in the
apartment for more than 14 consecutive days without management’s written
consent. Among its obligations, BHA agreed “[t]o comply with requirements of
applicable” regulations of the United States Department of Housing and Urban
Development (HUD). The lease further provided that BHA could “terminate or
refuse to renew this Lease for serious or repeated violation of Resident’s obligation
under any section of this Lease or for other good cause.” Prior to termination,
however, BHA was required to provide a notice of termination that “shall inform
resident of his/her right to make such reply as he/she may wish and his/her right to
request a hearing in accordance with the current Grievance Procedure as posted in
the Management Office.”2 The notice must be provided thirty days before the
termination date if for a reason other than failure to pay rent timely or a health,
safety, or security concern.
1
“Dezavala” is the spelling and capitalization that appears in our record.
2
The lease stated that notice to vacate may be combined with and run concurrently with
notice of lease termination.
2
According to their testimony at trial, Cora Ringer, property manager for
Dezavala Courts, and Anna Laurel, BHA director of public housing, questioned
Geters in early June 2012 about reports that Geters’ son was staying in her
apartment. The BHA representatives obtained from Geters what they perceived to
be a confession that she had allowed her son to stay in the apartment for more than
fourteen straight days, a violation of the lease agreement.3
On June 11, 2012, Geters received a combined notice of termination of her
lease and notice to vacate the premises. The stated reason for termination was
Unauthorized Occupant,4 and its cover letter, signed by Ringer, alleged Geters had
“admitted that [her] son stays with [her] over the 14 day limit as stated on [the]
lease.” The document purported to terminate her right of occupancy and directed
her to vacate by July 11, 2012 or “[BHA] shall proceed against [her] as the Law
directs.” It further informed Geters that she had a right to request a hearing under
the BHA grievance procedures within ten days of the date of the notice.5
No other notices were given to Geters. Geters did not request a grievance
hearing. BHA filed a forcible detainer action on June 28, 2012 in a Harris County
justice of the peace court. The justice court found in Geters’ favor on July 10,
2012. BHA then filed a de novo appeal in county court at law. At the conclusion
of BHA’s presentation of its case, Geters moved for judgment on the grounds that
(1) BHA had not provided her with a second notice to vacate after her time to
respond had expired, and (2) the lawsuit was filed prior to expiration of the thirty
days given to vacate. The county court denied Geters’ motion for judgment. At
the conclusion of trial, the court awarded possession of the property to BHA. In its
3
Geters testified that her son had not stayed in her apartment beyond 14 days.
4
The alleged violations in full are: “You have violated lease paragraph(s): 1-A; 7-A; 7-
B; Unauthorized Occupant.” The cited paragraphs concern the identity of premises residents.
5
The notice did not expressly mention Geters’ right to reply.
3
findings of fact and conclusions of law, the court stated that Geters violated the
lease agreement by permitting her son to reside with her without obtaining
permission from BHA. The court made no express finding regarding the
sufficiency of the notice to vacate. In its judgment, the court ordered that a writ of
possession would issue after November 2, 2012. Geters vacated the property on
December 8, 2012.
Jurisdiction
As stated, BHA contends that this appeal has been rendered moot by the fact
that Geters does not have a potentially meritorious claim to current, actual
possession of the property because her lease expired by its own terms on December
31, 2012 and did not provide for automatic renewal. See Marshall v. Hous. Auth.
of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006) (holding appeal in forcible
detainer action was moot because lease had expired and tenant presented no basis
for claiming a right to possession after the expiration date). The only issue in a
forcible detainer action is the right to possession of the premises. Id. at 785-86.
Thus, if the tenant no longer has an arguable right to possession, even once the
case is on appeal, a justiciable controversy ceases to exist, and the case is rendered
moot. See id. at 785-87; see also In re Kellogg Brown & Root, Inc., 166 S.W.3d
732, 737 (Tex. 2005) (“A case becomes moot if a controversy ceases to exist
between the parties at any stage of the legal proceedings, including the appeal.”).
We lack jurisdiction to entertain moot controversies. See NCAA v. Jones, 1
S.W.3d 83, 86 (Tex. 1999).
Geters asserts, however, that she maintains an arguable basis for asserting a
right to possession because—even though the lease does not expressly state that it
was to automatically renew—it was in fact required to automatically renew under
its own terms and under federal law. See Washington v. Related Arbor Court,
4
LLC, 357 S.W.3d 676, 678 n.1 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(holding appeal in forcible detainer action was not moot where lease automatically
renewed); Kennedy v. Andover Place Apts., 203 S.W.3d 495, 497 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (same).
As a federally-subsidized housing authority, BHA is governed by the United
States Housing Act of 1937 and its attendant regulations. See, e.g., Sager v.
Housing Comm’n of Anne Arundel Cnty., 855 F. Supp. 2d 524, 531-32 (D. Md.
2012) (“The operation of public housing by [public housing authorities] is subject
to comprehensive federal regulation. Among other things, federal law dictates
much of the content of public housing leases, requiring the inclusion of various
provisions and prohibiting other provisions.”); Carrera v. Yepez, 6 S.W.3d 654,
657 n.5 (Tex. App.—El Paso 1999, pet. dism’d w.o.j.) (discussing creation and
governance of public housing authorities). The applicable federal statute and
regulations mandate that public housing authority leases contain provisions for
automatic renewal. 42 U.S.C. § 1437d(l)(1) (requiring that leases “shall be
automatically renewed for all purposes”); 24 C.F.R. § 966.4(a)(2) (specifying that
public housing leases “must be automatically renewed”); see also Sager, 855 F.
Supp. 2d at 532 (“Leases in public housing are ‘automatically renewed’ on an
annual basis, and cannot be terminated by a PHA except for ‘serious or repeated
violation of the terms or conditions of the lease or for other good cause.’ The right
of a public housing tenant to remain in his or her housing is ‘entitled to due process
protection.’” (quoting 42 U.S.C. § 1437d(l)(1), (5) and Caulder v. Durham Hous.
Auth., 433 F.2d 998, 1003 (4th Cir. 1970), and citing 24 C.F.R. § 966.4(a)(2), (l)(2)
and Goldberg v. Kelly, 397 U.S. 254 (1970))).6
6
The only basis for termination found by the trial court was the extended presence of
Geters’ son in the apartment without management’s consent. Geters challenges the sufficiency
of the evidence to establish she received proper notice regarding this ground, and we discuss that
5
As stated, the lease agreement at issue here does not specifically state
whether or not it was to automatically renew. It does, however, expressly obligate
BHA to comply with all applicable HUD regulations and provide that BHA could
“refuse to renew this Lease for serious or repeated violation of Resident’s
obligation under any section of this Lease or for other good cause.” The mere
expiration of a lease term does not provide good cause for failure to renew a lease.
Cf. Kennedy, 203 S.W.3d at 497; Newhouse v. Settegast Heights Village Apts., 717
S.W.2d 131, 134 (Tex. App.—Houston [14th Dist.] 1986, no writ).7
Based on these statutory, regulatory, and contractual provisions concerning
renewal, Geters indeed asserts an arguable basis for asserting a right to possession,
even though the specified one-year period of her written lease has ended. See
Marshall, 198 S.W.3d 785-87.8 This dispute is therefore ongoing, and we retain
jurisdiction to consider the appeal.9
issue in detail below.
7
Kennedy and Newhouse both involved disputes in the context of federally subsidized
housing but did not involve public housing authorities; thus, the applicable statutes and
regulations are not the same as in the present case. See Newhouse, 717 S.W.2d at 132-33 (citing
42 U.S.C. 1437f(a) and 24 C.F.R. 247.2(a), 247.3(a)). However, termination of the lease by
itself would not provide good cause for nonrenewal under either statutory or regulatory scheme.
See generally In re Burch, 401 B.R. 153, 160 n.15 (Bankr. E. D. Pa. 2008) (discussing various
public housing schemes and the requirement of good cause for nonrenewal).
8
BHA also argues that Geters did not challenge on appeal the unauthorized occupancy of
Geters’ son, which it claims was “good cause” to terminate the lease even if it were
automatically renewed. However, in Kennedy, this court found tenant’s appeal was not moot
(despite expiration of the lease) where the landlord failed to present evidence of good cause for
termination arising after the forcible detainer was filed. 203 S.W.3d at 497.
9
Although not raised by BHA, we further note that Geters’ failure to supersede the
judgment and resultant loss of possession of the property likewise does not moot her appeal
because she retains a potentially meritorious claim of right to actual, current possession. See
Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.]
2011, no pet.).
6
Notice
As mentioned above, in her sole issue, Geters contends that the trial court
erred in awarding possession to BHA because the record contains no evidence that
BHA provided her with a statutorily-sufficient notice to vacate. When reviewing
the legal sufficiency of the evidence, we examine the evidence in the light most
favorable to the challenged finding and indulge every reasonable inference that
would support that finding. See City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). Evidence is legally sufficient if it would enable a reasonable and fair-
minded person to reach the finding under review. Id. We must sustain a no-
evidence point when either the record reveals a complete absence of evidence of a
vital fact, the court is barred by rules of law or of evidence from giving weight to
the only evidence offered to prove a vital fact, the evidence offered to prove a vital
fact is no more than a mere scintilla, or the evidence establishes conclusively the
opposite of the vital fact. Ahmed v. Ahmed, 261 S.W.3d 190, 193-94 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
Chapter 24 of the Texas Property Code governs forcible entry and detainer
actions. Tex. Prop. Code §§ 24.001-.011; see also Resendez v. FV REO I, LLC,
No. 03-13-00201-CV, 2014 WL 411720, at *1 n.1 (Tex. App.—Austin Jan. 31,
2014, no pet. h.) (“The statutory remedy of forcible detainer will lie when a person
in possession of real property refuses to surrender possession on demand if the
person is a tenant at will or by sufferance . . . .”). The proper interpretation of
statutory language is a matter for de novo review. City of Rockwall v. Hughes, 246
S.W.3d 621, 625 (Tex. 2008). In determining the legislature’s intent in enacting a
statute, we look to the plain meaning of the words used in the statute. See
Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768–69 (Tex. 2000).
We presume that every word was deliberately chosen and that excluded words
7
were intentionally excluded. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535,
540 (Tex. 1981).
Under Property Code section 24.002, a tenant commits a forcible detainer by
refusing to surrender possession of real property after the landlord has lawfully
terminated the tenant’s right to possession. Tex. Prop. Code § 24.002(a); Kennedy,
203 S.W.3d at 497. That section requires a landlord to make a written demand for
possession and comply with section 24.005’s requirements regarding a notice to
vacate before pursuing a forcible detainer action. Tex. Prop. Code § 24.002(b);
Kennedy, 203 S.W.3d at 497. Because forcible detainer is a statutory cause of
action, a landlord must strictly comply with its requirements. Fashakin v. Fed.
Home Loan. Mortg. Corp., No. 14-11-01079-CV, 2013 WL 1316694, at *2 (Tex.
App.—Houston [14th Dist.] April 2, 2013, pet. denied) (mem. op.); Kennedy, 203
S.W.3d at 497. Proper notice is an element of a forcible detainer action. Fashakin,
2013 WL 1316694, at *2.
Geters specifically argues that BHA was not entitled to prevail in its forcible
detainer action because it failed to comply with two notice-related requirements in
section 24.005, specifically subsections (a) and (e), and thus did not lawfully
terminate her tenancy. We agree.
Subsection 24.005(a)
First, under subsection 24.005(a), a landlord must give a tenant “at least
three days’ written notice to vacate the premises before the landlord files a forcible
detainer suit, unless the parties have contracted for a shorter or longer notice period
in a written lease or agreement.” Tex. Prop. Code § 24.005(a); see also Caro v.
Fed. Home Loan Mortg. Corp., No. 05-11-01023, 2013 WL 226890, at *2-3 (Tex.
App.—Dallas Jan. 14, 2013, no pet.) (mem. op.) (holding record contained
evidence supporting trial court’s implied finding that forcible detainer action was
8
not filed until after expiration of time period specified in section 24.005(b), which
is substantially similar to that of section 24.005(a)).
Here, the lease agreement between Geters and BHA required 30-days’ notice
of termination and provided that notice to vacate could run concurrently with
notice of termination.10 BHA’s combined notice to terminate and notice to vacate
delivered to Geters expressly allowed her 30 days to vacate the premises. Geters
received those notices on June 11, 2012, and therefore had until July 11, 2012 to
vacate under their terms. BHA, however, filed its forcible detainer action in justice
court earlier, on June 28, 2012. This was a clear violation of section 24.005(a).
BHA argues, however, that the pertinent date for the filing of its lawsuit is
August 1, 2012, the day that BHA filed its appeal of the justice court decision in
county court. BHA cites Stevenson v Housing Authority of the City of Austin for
the proposition that, when a justice court ruling is appealed to a county court,
complaints regarding flawed proceedings in the justice court are rendered moot by
the trial de novo in county court. 385 S.W.3d 684, 687 (Tex. App.—El Paso,
2012, no pet.). Stevenson is not on point. Stevenson did not concern filing dates; it
concerned an allegation of lack of due process. Stevenson relied on Coleman v.
Bank of America, National Assoc., No. 06–11–00105–CV, 2012 WL 1940674, at
*1 (Tex. App.—Texarkana May 30, 2012, no pet.), for its holding that Stevenson’s
complaints were rendered moot by the de novo trial in county court. Coleman did
not concern filing dates, either; it concerned the justice court’s legal conclusion as
to notice and held that an appeal from a justice court’s judgment is, essentially, a
new trial before a different judge. 2012 WL 1940674, at *1.
BHA neither initiated its lawsuit in county court, nor could it have. By
10
See discussion regarding the propriety of the provision permitting the two notices to
run concurrently, supra.
9
statute, forcible detainer actions must originate, as this one did, in justice court;
such an action proceeds to county court only on appeal from the justice court’s
determination. See Tex. Prop. Code §24.004; Haginas v. Malbis Mem’l Found.,
163 Tex. 274, 277-78, 354 S.W.2d 368, 371 (Tex. 1962); Williams v. Bayview-
Realty Assocs., No. 14-12-00404-CV, 2014 WL 47730, at *1 (Tex. App.—Houston
[14th Dist.] Jan. 7, 2014, no pet. h.). Thus, the date of filing in justice court, not
the date of filing the appeal in county court, governs the analysis under section
24.005(a). See Johnson v. Mohammed, No. 03–10–00763–CV, 2013 WL 1955862,
at *6-7 (Tex. App.—Austin May 10, 2013, pet. dism’d w.o.j.) (mem. op.) (using
date of filing in justice court for determining whether notice was proper under
section 24.005(b), which is substantially similar to section 24.005(a)); Caro, 2013
WL 226890, at *1-3 (same).
BHA additionally argues that reversal is not appropriate in this case because
Geters failed to demonstrate that she was “injured or prejudiced” by the filing of
the forcible detainer action prior to expiration of the time for her to vacate the
premises. BHA represents that Geters had adequate time to retain counsel and
prepare her case for trial.11 BHA does not cite any authority for the proposition
that a harm analysis should be applied in cases involving subsection 24.005(a), and
this court never has held that a harm analysis should be performed. We decline to
do so here. Subsection 24.005(a) more likely is intended to afford the tenant an
opportunity to (1) persuade the landlord not to pursue eviction or (2) move out of
the premises to avoid responding to a forcible detainer lawsuit rather than to hire
counsel and prepare a defense. BHA failed to satisfy section 24.005(a) by filing its
forcible detainer action before expiration of the time Geters was permitted to
11
The forcible detainer action was filed on June 28, 2012, and trial occurred in justice
court on July 10, 2012. BHA filed its appeal in county court on August 1, 2012, and trial
occurred on October 9, 2012.
10
vacate the premises, thus denying her sufficient opportunity to persuade BHA not
to pursue eviction or to move out before a lawsuit was filed against her.
Subsection 24.005(e)
Second, subsection 24.005(e) states: “If the lease or applicable law requires
the landlord to give a tenant an opportunity to respond to a notice of proposed
eviction, a notice to vacate may not be given until the period provided for the
tenant to respond to the eviction notice has expired.” Tex. Prop. Code § 24.005(e)
(emphasis added). “Under this plain language, when the lease requires an
opportunity to respond to a proposed eviction and section 24.005 thus applies, the
landlord must provide a separate, later notice to vacate.” Kennedy, 203 S.W.3d at
498 (citing Tex. Prop. Code § 24.005(e) and Santos v. City of Eagle Pass, 727
S.W.2d 126, 129 (Tex. App.—San Antonio 1987, no writ) (interpreting prior
statute)).
Geters’ lease states that she had a “right to make such reply as [she] may
wish and . . . to request a hearing in accordance with the current Grievance
Procedure . . . .” Although the lease does not specify how many days Geters would
be afforded to respond to the proposed termination, the combined notice of
termination and notice to vacate allotted her ten days from the date of the initial
notice to request a hearing pursuant to the grievance procedure. Under subsection
24.005(e) and Kennedy, BHA should have provided Geters with a second notice to
vacate after the expiration of the ten-day period. Tex. Prop. Code § 24.005(e);
Kennedy, 203 S.W.3d at 498. BHA’s failure to do so was fatal to its forcible
detainer action. See Fashakin, 2013 WL 1316694, at *2 (explaining that proper
notice is an element in a forcible detainer action); Kennedy, 203 S.W.3d at 498
(reversing county court’s forcible detainer judgment awarding possession to
landlord where landlord failed to provide second notice to vacate after expiration
11
of period provided for responding to notice of termination).
BHA further suggests in passing that Geters waived any complaint regarding
violation of subsection 24.005(e) when she failed to respond to the notice of
termination or utilize BHA’s grievance procedure. BHA does not cite any
authority in support of this one-sentence argument. Certainly, nothing in either
subsection 24.005(e) itself or the Kennedy opinion indicates the requirement of a
second or later notice is dependent on a tenant making a response or electing to
utilize the grievance process. We decline to read such a condition into the statute
where the statute contains no such language. See Hidi, 13 S.W.3d at 768-69
(stating that in determining legislative intent, we look to the plain meaning of the
words used); Cameron, 618 S.W.2d at 540 (explaining that in interpreting a statute,
we presume every word was deliberately chosen and excluded words were
intentionally excluded).
Conclusion
The trial court erred in its judgment awarding BHA possession of the
premises because the record does not contain evidence that BHA provided Geters
with a notice to vacate in compliance with Property Code section 24.005. We
therefore sustain Geters’ sole issue, reverse the trial court’s judgment, and render
judgment favoring Geters. See Kennedy, 203 S.W.3d at 498.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Frost, C.J.,
concurring).
12