REM Services, Inc. and Rise J. Montrell v. Dr. Amer Zaheer ( 2013 )

Affirmed and Memorandum Opinion filed April 4, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00724-CV
REM SERVICES, INC. AND RISE J. MONTRELL, Appellants
V.
DR. AMER ZAHEER, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 981203
MEMORANDUM OPINION
This is a dispute between a landlord, tenant, and guarantor. In two issues, we
must determine whether the landlord is entitled to summary judgment on his claim
for breach of contract. The tenant and guarantor challenge the landlord’s summary
judgment proof, the trial court’s rejection of their claimed issues of fact, and other
matters relating to their asserted affirmative defenses. Finding no error, we affirm
the judgment of the trial court.
BACKGROUND
REM Services, Inc., the tenant in this case, executed a residential lease
agreement with the landlord, Dr. Amer Zaheer. The lease contemplated that Rise J.
Montrell, the president of REM, would reside at the property along with two
members of her family. Montrell signed the lease in her capacity as REM’s
president. Before the term of the lease began, Montrell also signed a guaranty
agreement in her individual capacity, promising to pay any liabilities that might
arise from REM’s obligations under the lease.
The lease provided for a term of two and a half years, commencing in July
2008 and ending on New Year’s Day 2011. On August 17, 2010, Montrell’s niece
notified Zaheer of a problem with the front door, saying that it would not open and
that the knobs were extremely loose. Zaheer tried to arrange for his contractor to
inspect the problem, but Montrell objected to his proposed weekend inspection. On
August 21, before the contractor could arrive, Montrell informed Zaheer that she
intended to vacate the premises at the end of the month. In her email to Zaheer,
Montrell claimed that she could no longer live at the property because the house
was not safe, and the broken door was a fire hazard. Her decision to surrender the
property coincided with the purchase of another home.
Zaheer filed suit against REM and Montrell for breach of contract. He
sought accelerated rents for the four months remaining on the lease, the costs of
repairs beyond normal wear and tear, plus reasonable and necessary attorney’s
fees. In their answer, appellants claimed that they had lawfully terminated the lease
because there were conditions in the home materially affecting their safety and
security. Multiple other defenses were asserted, as was a counterclaim for the
wrongful withholding of their security deposit.
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Both sides moved for summary judgment. On January 13, 2012, the trial
court denied appellants’ motion in its entirety and granted a partial summary
judgment in favor of Zaheer. In this judgment, the court awarded Zaheer $24,000
in damages, representing the four months of accelerated rents on his breach of
contract claim. The court denied relief on Zaheer’s other claim for repairs and
ordered that claim to proceed to trial, where evidence of attorney’s fees would also
be considered.
Despite the limited issues that remained in the case, appellants filed more
than a hundred proposed jury questions. In the interest of judicial economy, Zaheer
nonsuited his claim for repairs and moved for summary judgment on the issues of
attorney’s fees and appellants’ counterclaim. On April 27, 2012, the trial court
granted Zaheer a final summary judgment. This appeal ensued. In two issues,
appellants challenge the trial court’s granting of Zaheer’s motion for summary
judgment and the denial of their own motion for summary judgment.
STANDARD OF REVIEW
Our review of the trial court’s summary judgment is de novo. Ferguson v.
Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Tex.
Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.
2007). With a traditional motion for summary judgment, the movant bears the
burden of showing that there is no genuine issue of material fact and that he is
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take
as true all evidence favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts in the nonmovant’s favor. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The nonmovant has no burden to
respond to a traditional motion for summary judgment unless the movant
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conclusively establishes each element of his cause of action or affirmative defense
as a matter of law. Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex.
1999). When both parties move for summary judgment and the trial court grants
one motion but denies the other, we review the evidence produced by each party,
determine de novo all questions presented, and render the judgment the trial court
should have rendered. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s
London, 327 S.W.3d 118, 124 (Tex. 2010).
ZAHEER’S MOTION
We begin with Zaheer’s motion for summary judgment, which sought relief
for breach of contract. To recover on that claim, Zaheer was required to establish
each of the following elements: the existence of a valid contract; his performance
or tendered performance; appellants’ breach of the contract; and damages sustained
as a result of their breach. See Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied). Zaheer alleged two breaches in this case.
He argued first that REM breached the lease when it vacated the property and
failed to pay the rents due on the remaining months of the term. He next argued
that Montrell breached the guaranty agreement when she failed to deliver the
payments due when REM defaulted.
Appellants argue that the summary judgment proof is insufficient because
Zaheer relied solely on his pleadings. Appellants have grossly mischaracterized the
record. Zaheer attached numerous exhibits to his motion, including the lease and
guaranty agreement. Both contracts were drafted by the Texas Association of
Realtors, and each clearly describes the duties belonging to REM and Montrell.
Appellants further claim that the guaranty agreement cannot be considered
because it was not expressly part of the lease and because it fails for lack of
consideration. These arguments are not persuasive. Under the plain terms of the
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contract, Montrell agreed to guarantee the performance of REM “[i]n consideration
for Landlord leasing the Property to Tenant.” Such agreements are enforceable in
Texas even if they post-date the underlying obligation. See First Commerce Bank
v. Palmer, 226 S.W.3d 396, 398 (Tex. 2007).
Zaheer’s exhibits include two letters sent to appellants on September 15,
2010 and October 1, 2010. The letters notify REM that it has surrendered the
property and that it has defaulted under the lease. The letters further notify REM
that all unpaid rents for the remaining term have been accelerated and that Montrell
is personally liable for payment. Zaheer attested to the same facts in his affidavit,
specifically stating that appellants owe a total of $24,000 in rents for the months of
September through December 2010.
Appellants summarily contend that these exhibits do not present competent
summary judgment evidence. Their argument is conclusory, however, having no
explanations or citations to authority. We conclude that this issue is waived. See
Tex. R. App. P. 38.1(i). Furthermore, we note that appellants have not presented
any evidence to controvert Zaheer’s assertions. Appellants freely admit that they
vacated the premises in August 2010 and that no rents were paid thereafter. The
record conclusively establishes that REM was in breach of the lease and that
Montrell was in breach of the guaranty agreement. Accordingly, Zaheer was
entitled to summary judgment unless appellants somehow negated his claim with
an affirmative defense.
APPELLANTS’ MOTION
Appellants asserted a number of affirmative defenses, but their pleadings are
not a model of clarity. Many defenses appear to overlap in the briefing, and the
arguments are often repetitive. From what we can discern, appellants have
organized their defenses around the following broad issues: (1) appellants
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“surrendered” the property under the terms of the lease, and Zaheer cannot show
that they “abandoned” it; (2) Zaheer failed to mitigate his damages; and
(3) appellants unilaterally terminated the lease under Chapter 92 of the Texas
Property Code. We examine these issues in turn. Finally, we conclude with a
discussion of appellants’ counterclaim.
A. Abandonment and Surrender
Appellants argue the following with respect to their first defense: “Zaheer
failed to perform all conditions precedent to a claim that REM and Montrell
‘abandoned’ the property, but REM and Montrell did perform all conditions
precedent to their claim that they properly ‘surrendered’ the property to Zaheer”
(emphasis appellants’).
“Abandonment” and “surrender” are defined terms under the lease. The
lease states that the tenant must surrender the property at the end of the lease term,
and a “surrender” occurs when the move-out or termination date has passed and the
tenant has returned all keys and access devices to the landlord. The lease further
provides, “Tenant may not abandon the Property.” An abandonment occurs when
all occupants have vacated the property; the tenant has breached the lease by
failing to pay the rent; and the landlord has delivered written notice to the tenant,
by affixation to the main door, stating that the landlord considers the property
abandoned, and the tenant fails to respond to the affixed notice.
Appellants appear to argue that they properly surrendered the property
because they notified Zaheer of their intent to vacate the premises early, they
vacated by their noticed date, and they left the keys in Zaheer’s possession.
Appellants seem to argue next that there was no abandonment because, although
they did vacate before the lease term expired, “Zaheer never posted a notice of
abandonment regarding the property.”
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These arguments are meritless. Voluntarily surrendering the property does
not obviate a breach under the lease. The duty to pay rent remains even if the
tenant chooses to leave. Furthermore, Zaheer’s claim for breach of contract does
not depend on proof that he affixed notice of abandonment to the door of his
property. It was enough to show that appellants vacated the premises without
paying when several months remained on the term—and this much was
undisputed. Accordingly, these defenses would not preclude summary judgment.
B. Failure to Mitigate
Appellants argue next that Zaheer failed to mitigate his damages. A landlord
has a duty to mitigate his damages if the tenant abandons the leased premises in
violation of the lease. See Tex. Prop. Code § 91.006. This duty requires that the
landlord use objectively reasonable efforts to re-lease the premises when the tenant
vacates in breach of the lease. See Austin Hill Country Realty, Inc. v. Palisades
Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997); White v. Harrison, 390 S.W.3d 666,
675 (Tex. App.—Dallas 2012, no pet.). The landlord’s failure to use reasonable
efforts to mitigate damages bars the landlord’s recovery against the breaching
tenant only to the extent that damages reasonably could have been avoided. See
Austin Hill Country Realty, 948 S.W.2d at 299. The tenant bears the burden of
proving both the landlord’s failure to mitigate and the amount by which the
landlord could have reduced his damages but for that failure. See id.
Appellants cite Zaheer’s deposition testimony for proof of his failure to
mitigate. The testimony reflects that Zaheer did not list the property for rent or sale
during the months remaining on the lease. The testimony reflects further that
Zaheer commissioned a third party to draft a property inspection report two weeks
after appellants vacated the premises. When questioned about his reasons for the
report, Zaheer testified that he needed an assessment of damages before he could
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calculate the cost of repairs. He initially denied that the inspection was done for the
purpose of re-leasing, but later stated that it “was probably to see if we can lease
the property.”
The evidence is not conclusive that Zaheer failed to mitigate his damages,
and even if it were, appellants have not cited any evidence showing the amount by
which Zaheer could have reduced those damages. Appellants have failed to carry
their burden of raising a fact issue with respect to this affirmative defense.
C. Unilateral Termination
Appellants also argue that Chapter 92 of the Texas Property Code authorized
their unilateral termination of the lease. This defense refers to multiple complaints
involving security devices, smoke detectors, and other matters allegedly affecting
their physical health and safety.
1. Security Devices
In Texas, landlords must comply with certain statutory requirements
pertaining to security devices in leased dwellings. See Tex. Prop. Code § 92.158.
“Security device” means a doorknob lock, door viewer, keyed dead bolt, keyless
bolting device, sliding door handle latch, sliding door pin lock, sliding door
security bar, or window latch in a dwelling. Id. § 92.151(11). A landlord’s failure
to comply with statutory requirements can result in several consequences, the most
serious of which is the tenant’s election to unilaterally terminate the lease. This
extreme remedy is afforded by two separate provisions in the Code. The first
provision, Section 92.164, states as follows:
If a landlord does not comply with Section 92.153 . . . regarding
installation or rekeying of a security device, the tenant may . . . serve a
written request for compliance on the landlord, and . . . if the landlord
does not comply on or before the third day after the date the notice is
received, unilaterally terminate the lease without court proceedings.
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Id. § 92.164(a)(2). The second provision, Section 92.165, affords the same remedy,
but only “[i]f a landlord does not comply with a tenant’s request regarding
rekeying, changing, adding, repairing, or replacing a security device under Section
92.156(b), 92.157, or 92.158 in accordance with the time limits and other
requirements of this subchapter.” Id. § 92.165(2).
The difference between these two provisions is subtle. The first provision
applies a three-day timeframe when the request to comply relates to the installation
or rekeying of a security device under Section 92.153. Under that section, such
devices must be equipped by the landlord “without necessity of request by the
tenant” and they must “be operable throughout the time the tenant is in possession
of [the] dwelling.” Id. § 92.153(a), (h). The second provision applies a different
timeframe when a device required under Section 92.153 has already been installed
but the tenant makes a request under another section for some addition or change.
See id. § 92.156(b) (“A landlord shall perform additional rekeying or change a
security device at the tenant’s expense if requested by the tenant.”); id. § 92.157
(providing that certain additional security devices may be requested at any time);
id. § 92.158 (providing that a landlord must repair or replace a security device on
request or notification by the tenant that the device is inoperable or in need of
repair or replacement). The Code affords the landlord a reasonable amount of time
to make such additions or changes, and a reasonable amount of time is presumed to
be no longer than seven days after the landlord receives notice of the request. Id.
§ 92.161(a).
Appellants invoke both of these provisions as affirmative defenses. We
begin with their arguments under Section 92.164. A tenant may terminate the lease
under this provision only if the landlord has failed to comply with Section 92.153
“regarding installation or rekeying of a security device.” Appellants allege three
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instances of noncompliance. First, they claim that Zaheer violated Section
92.153(a)(5), which requires the landlord to equip a keyless bolting device and
door viewer on each exterior door of the dwelling. The rules of appellate procedure
mandate that this argument be supported by “appropriate citations to authorities
and to the record.” See Tex. R. App. P. 38.1(i). Appellants, however, submitted
their brief with only two short and conclusory sentences on this issue. In support of
their claim, they cite a span from the record consisting of more than three hundred
sixty pages. We do not address this claim any further because it is appellants’ duty,
not this court’s, to pore through the summary judgment record and find specific
references in support of their argument.
Appellants claim next that Zaheer violated Section 92.153(g)(1). But this
provision provides an exception to the landlord’s duty to install security devices.
Appellants have not explained how this provision, or its alleged violation, has any
bearing on their claimed defense.
Appellants claim further that Zaheer violated Section 92.153(h), which states
that a security device required by that section must be operable at all times the
tenant is in possession of the leased dwelling. Appellants’ discussion of this claim
is again conclusory. They argue: “Multiple security devices such as the front door,
garage door, security gate were not operable on numerous and/or extended
occasions resulting in non-compliance with this subsection of the Code.” As a
matter of law, this claim does not raise an issue of fact because a “security device,”
as that term is defined under Chapter 92, includes none of these items. See Tex.
Prop. Code § 92.151(11).
In their reply brief, appellants attempt to refocus their claim with more
pertinent examples from the record. However, a party may not assert new issues in
a reply brief. See Zurita v. Lombana, 322 S.W.3d 463, 477 (Tex. App.—Houston
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[14th Dist.] 2010, pet. denied). Even if we were to consider the new arguments,
they would not be availing. The newly cited evidence reflects that appellants made
several maintenance requests during the course of their tenancy. The property
apparently had foundation issues, and as the house shifted over time, some internal
and external doors became stuck. On one occasion, portions of the front door had
to be “shaved off,” although the record indicates that this procedure may have been
performed simply to fit clips for the alarm system. With respect to security devices,
the record shows that appellants made some requests that the locks be changed and
that Zaheer responded to those requests in a timely manner.
Appellants seem to insist that Zaheer was still in violation of Section
92.153(h) because, when they vacated the premises, there was another operability
issue with the lock on the front exterior door. However, appellants failed to give
adequate notice of this problem. The email sent on August 17, 2010 asked Zaheer,
“Please send someone to look at the front door: 1. It’s not opening at all 2. The
doorknobs are extremely loose.” Appellants did not identify an issue with the locks
or a security device until an email on August 20—after they had already rejected
Zaheer’s offer to inspect the problem on the weekend. Appellants referenced the
locks again in their email on August 21, but not in the context of a request. In that
final email, they unequivocally stated that they “will have to move by September
1st.” Appellants did not comply with the statutory prerequisite to termination
because their notice to Zaheer was inadequate and they denied him an opportunity
to cure. Accordingly, they have no defense under Section 92.164.
The next set of defenses alleges to support a termination under Section
92.165. A tenant may terminate under this provision only after the landlord fails to
act in a reasonable time with respect to a request under Section 92.156(b), 92.157,
or 92.158. Appellants refer to complaints under all three of these statutes.
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Section 92.156(b) states, “A landlord shall perform additional rekeying or
change a security device at the tenant’s expense if requested by the tenant.”
Appellants cite evidence that they expressed concern over the locks and that there
were five different access keys to the property. As with their other allegations,
appellants have not cited any evidence of a request for “additional rekeying” of a
security device. See Tex. Prop. Code § 92.151(10) (stating that “rekey” means to
change or alter a security device that is operated by a key, card, or combination so
that a different key, card, or combination is necessary to operate the security
advice). To the extent that appellants made a request that Zaheer “change” a lock
or security device, appellants cite no evidence that Zaheer failed to perform the
change within a reasonable time.
Appellants argue next that Zaheer failed to comply with their requests under
Section 92.157. That provision states that the landlord must install, upon the
tenant’s request, a keyed dead bolt on an exterior door if the door has either a
doorknob lock but not a keyed dead bolt, or a keyless bolting device but not a
keyed dead bolt or doorknob lock. Id. § 92.157(a)(1)(A)–(B). In conclusory
manner, appellants claim that they “requested installation of deadbolts on multiple
occasions, Landlord promised to have deadbolts installed, but neglected and/or
refused to do so.” Again, appellants cite no specific evidence that Zaheer neglected
or refused to act on their request.
Appellants finally argue that Zaheer failed to comply with Section 92.158.
This section requires that a landlord repair or replace a security device on request
or notification by the tenant that the security device is inoperable or in need of
repair or replacement. Id. § 92.158. Appellants contend, “On multiple occasions,
Zaheer failed to timely, adequately, sufficiently, and/or truly repair security
devices on multiple exterior doors of the lease property.” No specific examples
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have been cited for the claimed “multiple occasions.” Even if we were to consider
the emails in August 2010 as a request to fix an inoperable security device, the
record shows that appellants did not afford Zaheer a chance to cure the issue within
a reasonable time. Accordingly, the requisites to unilateral termination have not
been satisfied.
We conclude that appellants failed to raise a fact issue with respect to their
asserted affirmative defenses under Section 92.164 and Section 92.165.
2. Smoke Detectors
As with security devices, landlords must also comply with statutory
requirements concerning smoke detectors. A tenant may unilaterally terminate the
lease without a court proceeding if the landlord fails act on the tenant’s request to
comply with these requirements. Id. § 92.260(6). As a condition precedent to
unilateral termination, the tenant must give the landlord “written notice that the
tenant may exercise his remedies under [Chapter 92, Subchapter F] if the landlord
does not comply with the request [to install, inspect or repair a smoke detector]
within seven days.” Id. § 92.259(a)(2).
Appellants argue that unilateral termination is available to them under these
provisions because “Zaheer failed to install a smoke detector to serve each and
every bedroom pursuant to the code.” See id. § 92.255 (requiring such detectors in
new construction). But appellants cite no evidence of a request for such
installations. Appellants have produced evidence showing that they once
complained of a constantly beeping smoke detector. But again, they cite no
evidence that the issue was not resolved within seven days, or that written notice
was given of their intent to terminate the lease if Zaheer failed to act on their
complaint. Without such evidence, appellants have no defense under these
provisions.
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Appellants alternatively complain of issues concerning the carbon monoxide
detectors. The Property Code does not specifically address these detectors.
Assuming, without deciding, that they fall within the meaning of smoke detectors,
any asserted defense would fail because appellants still have not produced
evidence that they gave Zaheer the requisite notice under Section 92.259(a)(2).
3. Physical Health and Safety
Appellants finally contend that they could terminate the lease because there
were conditions in the house materially affecting their physical health and safety.
Termination is permitted for this reason only when each of the following has been
satisfied:
(1) the tenant has given the landlord notice to repair or remedy a
condition by giving that notice to the person to whom or to the place
where the tenant’s rent is normally paid;
(2) the condition materially affects the physical health or safety of an
ordinary tenant;
(3) the tenant has given the landlord a subsequent written notice to
repair or remedy the condition after a reasonable time to repair or
remedy the condition following the notice given under Subdivision (1)
or the tenant has given the notice under Subdivision (1) by sending
that notice by certified mail, return receipt requested, or by registered
mail;
(4) the landlord has had a reasonable time to repair or remedy the
condition after the landlord received the tenant’s notice under
Subdivision (1) and, if applicable, the tenant’s notice under
Subdivision (3);
(5) the landlord has not made a diligent effort to repair or remedy the
condition after the landlord received the tenant’s notice under
Subdivision (1) and, if applicable, the tenant’s notice under
Subdivision (3); and
(6) the tenant was not delinquent in the payment of rent at the time
any notice required by this subsection was given.
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See id. § 92.056(b), (e)(1).
Appellants complain of a “litany of dangerous conditions,” including warped
floors, inoperable garage doors, exorbitant utility bills, inadequate window sealing,
and water leaks. They also complain that interior doors, electrical outlets, the
fireplace, toilets, and the gate were in some unspecified state of disrepair. We are
aware of no authority, and appellants have cited none, that these conditions
materially affect the physical health and safety of an ordinary tenant.
Appellants also allege that a water heater “literally explod[ed], blowing a
hole in the roof above the master bedroom, and causing significant leak through
the ceiling of the bedroom, down the walls, damaging sheetrock and carpeting.”
No direct evidence is cited for this allegation. Appellants claim instead that this
issue is supported by the inspection report prepared after their surrender of the
property. We have reviewed the report and have not found any mention of an
exploding water heater or a hole in the roof. The only negative comments in the
report about the roof are that tree branches should be removed over the roof
surface. The inspector did not identify any holes in the attic, finding merely that
additional insulation should be added to meet minimum requirements. Comments
about the water heater reflect only an appearance of a carbon monoxide leak and
possible water damage.
Appellants complain about the carbon monoxide leak as another issue
affecting their physical health and safety. The record shows that appellants notified
Zaheer of this issue in May 2010, and that Zaheer sent a company to correct the
leak. Clearly, Zaheer made a diligent effort to repair the problem. Appellants seem
to suggest that the problem was not remedied because a leak was still identified
after they vacated the premises. Even so, appellants cite no evidence showing that
they gave Zaheer the subsequent written notice required by statute.
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Appellants finally complain that the broken door materially affected their
safety because, in the event of a fire, the door would prevent them from escaping.
Appellants cite no authority that a door that will not open is sufficient, by itself, to
constitute a material threat to a tenant’s physical health and safety. Moreover, the
record shows that the door at issue was not absolutely preventing appellants’
ingress and egress. The home had other exterior doors which appellants were
accustomed to using. Also, appellants cannot show that Zaheer did not make a
diligent effort to correct the door. He offered to send his contractor on the weekend
less than seven days after the problem was identified. Appellants objected to the
offer, and before the door could actually be fixed, they decided to vacate. On this
record, appellants cannot show that they might have an applicable defense under
Section 92.056.
Because appellants failed to raise a fact issue with respect to any of their
affirmative defenses, Zaheer was entitled to judgment as a matter of law on his
breach of contract claim.
D. Counterclaim
Appellants asserted a counterclaim against Zaheer based on allegations
relating to the wrongful withholding of their security deposit. A landlord who
retains a security deposit in bad faith is liable for certain statutory damages. See id.
§ 92.109. Appellants contend that Zaheer acted in bad faith because he did not
return the security deposit within thirty days from the date of their leaving, and
because they did not cause any damage to the property beyond normal wear and
tear.
Appellants’ contentions are without merit for the following reasons. First,
the lease authorized Zaheer to deduct reasonable charges from the security deposit
for such reasons as accelerated rents and attorney’s fees, costs of court, costs of
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services, and other reasonable costs incurred in any legal proceeding against the
tenant. The four months of accelerated rents far exceeded appellants’ security
deposit in this case. Because appellants are legally liable for those rents, Zaheer
was not required to return the security deposit when they surrendered the property.
See id. § 92.104(a) (“Before returning a security deposit, the landlord may deduct
from the deposit damages and charges for which the tenant is legally liable under
the lease or as a result of breaching the lease.”); see also id. § 92.104(c) (providing
that the landlord is not required to give the tenant a description and itemized list of
deductions if the tenant owes rent when he surrenders possession of the premises).
Furthermore, the lease required that appellants give at least thirty days’
written notice of surrender before Zaheer was obligated to refund or account for
the security deposit. The evidence is undisputed that appellants gave Zaheer only
ten days’ notice. Additionally, by letter dated October 1, 2010, Zaheer described to
appellants the damages allegedly sustained to the property, and the estimated costs
of repairs exceeded appellants’ security deposit. The letter accordingly establishes
that Zaheer had reason to believe that he was entitled to retain the deposit, and
thus, was not acting in bad faith. See Pulley v. Milberger, 198 S.W.3d 418, 428–29
(Tex. App.—Dallas 2006, pet. denied). Also, Zaheer was not obligated to return
the deposit until appellants provided him with a forwarding address. See Tex. Prop.
Code § 92.107. Appellants have not cited any evidence that this notice was given.
Finally, appellants contend that Zaheer wrongfully withheld their deposit
because the evidence showed no damage beyond normal wear and tear. Appellants
rely heavily on the inspection report in support of this argument. But they ignore
two critical facts: first, Zaheer had other legitimate reasons for retaining the
security deposit, and second, Zaheer nonsuited his claim for damages beyond
normal wear and tear. Appellants have not carried their burden to establish a
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genuine issue of material fact that Zaheer withheld their deposit in bad faith. On
these facts, we conclude as a matter of law that he was not required to return it.
CONCLUSION
Zaheer established that he was entitled to judgment as a matter of law on his
claim for breach of contract. Appellants did not raise a genuine issue of material
fact with regard to either their asserted affirmative defenses or their counterclaim.
Appellants’ two issues are overruled, and the judgment of the trial court is
affirmed.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
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