Linda S. Nowlin v. Lori Keaton ( 2019 )

Opinion issued May 7, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00523-CV
———————————
LINDA S. NOWLIN, Appellant
V.
LORI KEATON, Appellee
On Appeal from the County Court at Law No. 1
Travis County, Texas1
Trial Court Case No. C-1-CV-15-005936
MEMORANDUM OPINION
Appellant, Linda S. Nowlin, challenges the trial court’s judgment, rendered
after a jury trial, in favor of appellee, Lori Keaton, in Nowlin’s suit against Keaton
1
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See Misc. Docket No. 17–9066 (Tex. June 20,
2017); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases).
for breach of lease agreement and Keaton’s countersuit against Nowlin for failure to
refund security deposit,2 retaliation,3 and other violations of the Texas Property
Code.4 In seven issues, Nowlin contends that the trial court erred in entering
judgment in favor of Keaton on Nowlin’s breach-of-lease-agreement claim, entering
judgment in favor of Keaton on Keaton’s counterclaims, and awarding Keaton
attorney’s fees.
We affirm.
Background
In her amended petition, Nowlin alleged that on May 6, 2014, she purchased
a house in Austin, Texas (the “property”). Prior to Nowlin’s purchase, Keaton lived
at the property pursuant to a lease agreement with the property’s previous owner.
Nowlin and Keaton executed a new lease agreement (the “lease agreement”) when
Nowlin purchased the property.
Nowlin further alleged that the lease agreement provided a lease term from
May 6, 2014 until April 30, 2015 and required Keaton to pay $2,100 in rent each
month. Keaton was to make her rent payments by direct deposit on the first day of
each month, with the exception of her May 2014 rent payment. Keaton was not
2
See TEX. PROP. CODE ANN. §§ 92.103, 92.104.
3
See id. § 92.331.
4
See id. §§ 92.153(a)(3), (a)(5), 92.157(a)(2), 92.158.
2
required to pay a security deposit directly to Nowlin, but the $2,000 security deposit
that Keaton had paid to the property’s previous owner was transferred to Nowlin
when she purchased the property. The lease agreement also required Keaton to pay
a $1,785 reletting fee if she vacated the property under certain conditions before the
end of the lease term.
Additionally, under the terms of the lease agreement, Keaton was to provide
Nowlin with an inventory and condition form at the beginning of the lease term, and
Keaton was liable and required to reimburse Nowlin for any expenses incurred in
remedying damage to the property resulting from any cause other than Nowlin’s own
negligence or fault. The lease agreement also stated that Keaton was to promptly
notify Nowlin, in writing, of any water leaks, mold, electrical problems,
malfunctioning lights, broken or missing locks or latches, and other conditions that
posed a hazard. Further, Keaton was responsible for cleaning the interior of the
property and could be liable for reasonable cleaning charges.
In regard to termination of the lease agreement, Keaton was required to give
thirty-days written notice before moving out of the property. Upon vacating the
property, Keaton was liable for certain charges, including unpaid rent, certain repairs
and damages, replacement of unreturned keys, and the reletting fee, all which could
be deducted from Keaton’s $2,000 security deposit. Nowlin was required to return,
within thirty days of move out, Keaton’s security deposit, less any lawful deductions.
3
Nowlin further alleged that on June 3, 2014, Keaton paid Nowlin rent, but
failed to make any other rent payments thereafter. And Nowlin alleged that on
September 5, 2014, without written notice and prior to the end of the lease term,
Keaton moved out of the property without paying rent for the entire lease term,
responding to a notice of abandonment, making her September rent payment, paying
the $1,785 reletting fee, and cleaning the property.
After Keaton vacated the property, Nowlin discovered that the property had
been damaged. Between September 18, 2014 and November 5, 2014, Nowlin made
repairs to the property, which cost her $13,738. Nowlin also hired a professional
cleaning service to clean the property. Nowlin did not return any portion of Keaton’s
security deposit.
According to Nowlin, after Keaton vacated the property, Nowlin “exercised
reasonable diligence to mitigate [her] damages by repairing the damage to the
property caused by [Keaton] in as prompt a manner as possible and then [by] seeking
another tenant to” rent the property. Nowlin, however, did not find another tenant
for the remaining portion of the lease term, and she received “no actual rent from
any other tenant during that time period.” Nowlin asserted a claim against Keaton
for breach of lease agreement and sought $19,000 for unpaid rent, $13,738 for
repairs to the property, $1,785 for the reletting fee, and attorney’s fees.
4
In her third amended answer and counterclaims, Keaton generally denied the
allegations in Nowlin’s amended petition, asserting, inter alia, that Nowlin had
breached the lease agreement first and waived Keaton’s compliance with the lease
agreement. Keaton also brought counterclaims against Nowlin, alleging that she
began living at the property in 2011 under a lease agreement with the property’s
previous owner. Subsequently, she and Nowlin executed the lease agreement, which
required Keaton to pay $2,100 in rent each month.
After Nowlin purchased the property in May 2014, she and/or her agents,
repeatedly came to the property, oftentimes without proper notice and on holidays,
to make repairs that were purportedly “to protect [Nowlin’s] investment.” Nowlin
told Keaton that “she could enter [the property] whenever she wanted,” and Nowlin
told her contractors that they could leave their tools and materials in the property’s
garage. (Internal quotations omitted.) Nowlin also gave her contractors permission
to use Keaton’s tools to complete their work.
On May 14, 2014, Keaton “expressed to [Nowlin] that she was unaccustomed
to and overwhelmed by” Nowlin’s presence at the property and the presence of
Nowlin’s contractors at the property on an almost daily basis. On May 19, 2014,
Keaton sent Nowlin a letter expressing her frustrations with the frequent intrusions.
At that time, Keaton also requested that Nowlin install a keyless dead bolt lock on
the property’s front door. On May 24, 2014, Nowlin installed a “keyed” dead bolt
5
lock on the property’s front door, stating that it was “keyless” because no key existed
for the lock, despite there being “a clear keyhole on the exterior of the lock.”
(Internal quotations omitted.)
On June 11, 2014, Keaton notified Nowlin, by letter, that she had failed to
provide her address as required by the Texas Property Code, she was continuing to
access the property without providing proper notice, she had failed to install pin
locks on the exterior sliding glass doors at the property, and she had failed to provide
working handle latches for the exterior sliding glass doors. In her letter, Keaton
requested the installation of pin locks, working handle latches, and security bars on
the exterior sliding glass doors. On July 28, 2014, Keaton notified Nowlin by email
that a keyless dead bolt lock still had not been installed on the property’s front door
and “there were no locks on the [property’s exterior] sliding glass doors,” and
Keaton requested the installation of pin locks. According to Keaton, Nowlin did not
provide pin locks or proper security bars for any of the exterior sliding glass doors,
did not fix the inoperable handle latches that did not properly latch to secure the
exterior sliding glass doors, and did not disclose her address as requested.
Keaton further alleged that after Nowlin purchased the property in May 2014,
Nowlin served Keaton with three notices to vacate. The first notice to vacate, served
on June 4, 2014 (the “June 4, 2014 notice to vacate”), stated that Keaton “had
disturbed or threatened the rights, comfort, health, safety or convenience of others
6
and disrupted [Nowlin]’s business operations.” The second notice to vacate, served
on July 2, 2014 (the “July 2, 2104 notice to vacate”), stated that Keaton had failed
to pay rent. Contrary to the July 2, 2014 notice to vacate, however, Keaton alleged
that she had attempted to make her July rent payment by direct deposit, as required
by the lease agreement, but Nowlin had instructed her bank not to accept Keaton’s
deposit. On September 4, 2014, Nowlin served Keaton with a third notice to vacate
(the “September 4, 2014 notice to vacate”). The next day, Keaton told Nowlin that
she was moving out of the property. Keaton asserted counterclaims against Nowlin
for failure to refund security deposit, retaliation, and violations of Texas Property
Code sections 92.153(a)(3), (a)(5), 92.157(a)(2), and 92.158.
In regard to her counterclaim for failure to refund security deposit, Keaton
alleged that Nowlin refused, in bad faith, to return Keaton’s $2,000 security deposit
or provide Keaton with a proper itemized accounting after Keaton had vacated the
property and provided written notice of her forwarding address.5 Keaton sought
$6,100 in damages, “which represent[ed] the statutory penalty of $100 plus three
times the portion of the security deposit withheld by” Nowlin, and attorney’s fees.6
5
See id. §§ 92.103 (obligation to refund security deposit), 92.104 (retention of
security deposit and accounting).
6
See id. § 92.109(a) (“A landlord who in bad faith retains a security deposit . . . is
liable for an amount equal to the sum of $100, three times the portion of the deposit
wrongfully withheld, and the tenant’s reasonable attorney’s fees in a suit to recover
the deposit.”); see id. § 92.109(d) (“A landlord who fails either to return a security
deposit or to provide a written description and itemization of deductions on or before
7
With respect to her counterclaim for retaliation, Keaton alleged that Nowlin
was prohibited from retaliating against her when Keaton, in good faith, had exercised
or attempted to exercise her rights and had made requests for repairs.7 According to
Keaton, a landlord acts in retaliation when she commits any of the following acts
within six months of a tenant exercising her rights or making a repair request: (1) the
landlord files an eviction proceeding against the tenant, (2) the landlord deprives the
tenant of use of the premises, (3) the landlord decreases services to the tenant, and
(4) the landlord increases the tenant’s rent or terminates the tenant’s lease
agreement, or engages in a bad faith course of conduct that materially interferes with
the tenant’s rights under the lease agreement.8
Keaton alleged that she had exercised her right to the peaceful use and
enjoyment of the property by repeatedly requesting that Nowlin reduce the number
of intrusions at the property. In retaliation, Nowlin served Keaton with the June 4,
2014 notice to vacate, attempting to terminate the lease agreement. Further, when
Keaton requested that Nowlin install pin locks on the exterior sliding glass doors,
“repair inoperable handle latches” on the exterior sliding glass doors, and provide
her address as required by the Texas Property Code, Nowlin served Keaton with the
the 30th day after the date the tenant surrenders possession is presumed to have
acted in bad faith.”).
7
See id. § 92.331 (retaliation by landlord).
8
See id. § 92.331(b).
8
July 2, 2014 notice to vacate. And after Keaton prevailed in Nowlin’s
forcible-detainer action against her, Nowlin, in retaliation, served Keaton with the
September 4, 2014 notice to vacate. Keaton sought $2,600 in damages, “which
represent[ed] the statutory penalty of one month’s rent plus $500,” and attorney’s
fees.9
Keaton further alleged, in regard to her counterclaims for other violations of
Texas Property Code, that Nowlin violated Texas Property Code section
92.153(a)(3) by refusing to comply with Keaton’s written request for the installation
of pin locks on the exterior sliding glass doors at the property;10 Nowlin violated
Texas Property Code section 92.153(a)(5) by refusing to comply with Keaton’s
written request for the installation of a keyless dead bolt lock on the front door of
the property;11 Nowlin violated Texas Property Code section 92.157(a)(2) by
refusing to comply with Keaton’s written request for the installation of working
handle latches or security bars on the exterior sliding glass doors;12 and Nowlin
9
See id. § 92.333 (“[I]f a landlord retaliates against a tenant . . . , the tenant may
recover from the landlord a civil penalty of one month’s rent plus $500, actual
damages, court costs, and reasonable attorney’s fees . . . .”).
10
See id. § 92.153(a)(3) (“[W]ithout necessity of request by the tenant, a dwelling
must be equipped with: . . . a sliding door pin lock on each exterior sliding glass
door of the dwelling . . . .”).
11
See id. § 92.153(a)(5) (“[W]ithout necessity of request by the tenant, a dwelling
must be equipped with: . . . a keyless bolting device and a door viewer on each
exterior door of the dwelling.”).
12
See id. § 92.157(a)(2) (“At a tenant’s request made at any time, a landlord . . . shall
install: . . . a sliding door handle latch or sliding door security bar if the door is an
9
violated Texas Property Code section 92.158 by “refusing to repair or replace
[certain] broken security devices, specifically the inoperable [handle] latches [on the
exterior] sliding glass doors.”13
Related to her counterclaims for violations of Texas Property Code sections
92.153(a)(3) and (a)(5), Keaton sought $13,000 in damages, “which represent[ed]
the statutory penalty of one month’s rent ($2,100) plus $500, multiplied by five
violations,” and attorney’s fees.14 Related to her counterclaim for a violation of
Texas Property Code section 92.157(a)(2), Keaton sought $7,800 in damages,
“which represent[ed] the statutory penalty of one month’s rent ($2,100) plus $500[,]
multiplied by four doors,” and attorney’s fees.15 Finally, related to her counterclaim
for a violation of Texas Property Code section 92.158, Keaton sought $7,800 in
exterior sliding glass door without a sliding door handle latch or sliding door
security bar.”).
13
See id. § 92.158 (“During the lease term and any renewal period, a landlord shall
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.”).
14
See id. § 92.164(a)(4) (“If a landlord does not comply with [s]ection
92.153 . . . regarding installation . . . 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, file suit
against the landlord and obtain a judgment for: . . . actual damages[,] . . . a civil
penalty of one month’s rent plus $500[,] . . . [and] attorney’s fees . . . .”).
15
See id. § 92.165(3) (“If a landlord does not comply with a tenant’s request regarding
rekeying, changing, adding, repairing, or replacing a security device under
[s]ection . . . 92.157, . . . the tenant may: . . . file suit against the landlord and obtain
a judgment for: . . . actual damages[,] . . . a civil penalty of one month’s rent plus
$500[,] . . . [and] attorney’s fees . . . .”).
10
damages, “which represent[ed] the statutory penalty of one month’s rent ($2,100)
plus $500[,] multiplied by three devices,” and attorney’s fees.16
At trial, the trial court admitted into evidence a copy of the lease agreement
signed by Nowlin and Keaton. The lease term under the agreement began in May
2014 and ended on April 30, 2015. Pursuant to the lease agreement, Keaton was
required to pay $2,100 every month directly into Nowlin’s bank account (the
“deposit account”). Keaton’s rent payment was due on the first of the month, but no
late fees were to be imposed on Keaton until after the third day of the month. Under
the lease agreement, the $2,000 security deposit that Keaton had paid to the
property’s previous owner was to be transferred to Nowlin at the time she purchased
the property. Additionally, the lease agreement provided that Keaton would receive
an inventory and condition form on which she was to note any defects or damage to
the property that existed at the beginning of the lease term.
In order to move out of the property, the lease agreement required Keaton to
provide written move-out notice. Keaton was also liable for a $1,758 reletting fee if
she failed to give written move-out notice as required under the lease agreement,
moved out without paying rent in full for the entire lease term, moved out at
16
See id. (“If a landlord does not comply with a tenant’s request regarding rekeying,
changing, adding, repairing, or replacing a security device under
[s]ection . . . 92.158 . . . , the tenant may: . . . file suit against the landlord and
obtain a judgment for: . . . actual damages[,] . . . a civil penalty of one month’s rent
plus $500[,] . . . [and] attorney’s fees . . . .”).
11
Nowlin’s demand because of default, or was judicially evicted. The lease agreement
further provided that Nowlin was required to refund Keaton’s security deposit, less
any lawful deductions, and provide an itemized accounting of any deductions within
thirty days of Keaton vacating the property. Nowlin could deduct any unpaid rent
from Keaton’s security deposit.
In regard to security devices for the property, the lease agreement stated that
Nowlin was required by Texas law to provide pin locks on the exterior sliding glass
doors, either handle latches or security bars on the exterior sliding glass doors, and
“a keyless bolting device (deadbolt) on each exterior door.” And Nowlin was
required to pay for any missing security devices that were required by statute.
The trial court also admitted into evidence a copy of Keaton’s inventory and
condition form, which she completed at the beginning of the lease term and which
Nowlin signed. The form states that the property contained no “[k]eyless bolting
devices,” keyless dead bolt locks, or pin locks for the exterior sliding glass doors.
Further, the handle latches on the upstairs exterior sliding glass doors did not
function. In regard to security bars, the form states that only two of the upstairs
exterior sliding glass doors had bars.
Nowlin testified that she and Keaton signed the lease agreement, which had a
lease term from May 6, 2014 to April 30, 2015. Under the lease agreement, Keaton
12
was required to pay $2,100 each month by direct deposit into Nowlin’s deposit
account.
Keaton made her rent payments in May and June 2014. However, on June 4,
2014, Nowlin served Keaton with a notice to vacate, a copy of which the trial court
admitted into evidence. That notice states, in part:
You have violated your lease contract as noted below:
Lease Paragraph: 20 Prohibited Conduct.
See also Paragraph 28 When We May Enter.
Name of resident or occupant or guest in violation: Lori Keaton[.]
Nature of violations: Disturbing or threatening the rights, comfort,
health, safety or convenience of others including our agents; disrupting
our business operations.
These were substantial breaches of your TAA Lease Contract.
Your residency is terminated effective immediately. You are hereby
given notice to vacate the premises on or before midnight, June 5, 2014,
which is at least one day from the delivery of this notice in accordance
with your lease contract. Failure to move out by then will result in an
eviction suit being filed before the Justice of the Peace. Delay or
postponement of such action does not waive our rights. You are liable
for all rent due under the full term of your contract, damages to the
premises, legal fees and any other charges due under the terms of your
agreement.
On June 4, 2014, Nowlin also filed a forcible-detainer action against Keaton,
alleging that Keaton had breached the lease agreement by unreasonably refusing to
allow Nowlin or her agents to enter the property to make repairs or perform
maintenance and by failing to pay her rent in a timely manner.
13
According to Nowlin, Keaton did not make any rent payments after June 2014.
Thus, in Nowlin’s opinion, Keaton had failed to pay $21,000 in rent that was due
under the lease agreement. In regard to Keaton’s July rent payment, although Keaton
told Nowlin that she had tried to make the rent payment for that month, Nowlin
explained that Keaton did not make the rent payment on July 1, 2014. And because
of this, Nowlin immediately placed “a hold on [any] deposits” into her deposit
account, which prevented Keaton from making any rent payments by the method
provided for in the lease agreement. In other words, Nowlin “blocked” deposits to
the deposit account. On July 2, 2014, Nowlin served Keaton with a second notice
to vacate, a copy of which the trial court admitted into evidence. That notice states,
in part:
Re: TAA Lease Contract dated 4/12/14
between [Keaton] and Linda Nowlin (owner)[.]
Because of non-payment of rent, your residency is terminated effective
immediately. You are hereby given notice to vacate the premises on or
before midnight, July 3, 2014, which is at least one day from the
delivery of this notice in accordance with your lease contract. Failure
to move out by then will result in an eviction suit being filed before the
Justice of the Peace. Delay or postponement of such action does not
waive our rights. You are liable for all rent due under the full term of
your contract, damages to the premises, legal fees and any other charges
due under the terms of your agreement.
Nowlin noted that at the time she served Keaton with the July 2, 2014 notice to
vacate, her forcible-detainer action was still pending.
14
Nowlin further testified, related to her forcible-detainer action, that she had
admitted in that suit that she was “aware that under . . . Texas Property Code,
[s]ection 92.153,” she, as a landlord, was required to install certain items at the
property without a request from her tenant. And she conceded in that suit that
Keaton had complained about the exterior sliding glass doors at the property because
“the locks would not work.” Although in Nowlin’s opinion, the exterior sliding glass
doors were secure, she did admit, in her forcible-detainer action, that her contractors
did not think that the doors’ locks could be repaired or replaced because “they were
so old.” Thus, Nowlin’s contractors told her that security bars would be required to
ensure that the exterior sliding glass doors could not be opened from the outside, and
Nowlin testified at that time that she was “ready to buy new bars.”
Ultimately, in August 2014, the jury in Nowlin’s forcible-detainer action
found that Keaton had not unreasonably refused to allow Nowlin or her agents to
enter the property and that Keaton had not failed to make her rent payments under
the lease agreement in a timely manner. And the trial court entered judgment in
favor of Keaton in that case, which the Austin Court of Appeals affirmed.17 A copy
of the trial court’s charge to the jury in Nowlin’s forcible-detainer action, dated
August 27, 2014, was admitted into evidence in the instant case, and Nowlin
17
See Nowlin v. Keaton, No. 03-14-00608-CV, 2015 WL 3542895 (Tex. App.—
Austin June 4, 2015, no pet.) (mem. op.).
15
acknowledged that the jury in her forcible-detainer action determined that Keaton
did not violate the lease agreement by making her July rent payment “late.” And
when asked whether the judgment in the forcible-detainer action stated that “Keaton
did not violate the lease [agreement by] paying late or not paying [rent] through
August 2014,” Nowlin responded, “I believe that’s correct.” Nowlin further
admitted that there was no longer any controversy concerning the amount of rent at
issue in her forcible-detainer action, i.e., Keaton’s July and August rent payments.
Turning back to the instant case, in regard to the property’s front door, Nowlin
testified that in a May 19, 2014 letter, a copy of which the trial court admitted into
evidence, Keaton requested that a keyless dead bolt lock be installed on the front
door. According to Nowlin, her contractors installed a “keyless bolting device” on
the door on May 23, 2014. Nowlin explained that in the process of installing the
dead bolt lock, her contractors mistakenly “drilled all the way through [the door]
thinking that there was supposed to be a key on the outside and a bolting device on
the inside.” When they realized the mistake, instead of replacing the door, they “took
the pin out so that any key put in from the outside would just spin”; it was not
connected to any “bolting device.” When asked whether the “keyless bolting
device” that her contractors installed on the property’s front door actually had “a key
hole that [someone] could key on the outside of th[e] door,” Nowlin responded: “I
don’t know.” On July 28, 2014, Keaton sent Nowlin an email, a copy of which the
16
trial court admitted into evidence, notifying her that the property still required certain
“services and repairs,” including the installation of a keyless dead bolt lock on the
front door.
With respect to the exterior sliding glass doors on the property, Nowlin noted
that the only devices securing the exterior sliding glass doors were pieces of wood
or PVC pipe that were laid at the bottom of the doors. The trial court admitted into
evidence photographs of the pieces of wood and the PVC pipe found at the bottom
of the exterior sliding glass doors at the property. Nowlin stated that she never
purchased security bars, such as those available at home improvement stores, for the
exterior sliding glass doors because she considered the pieces of wood or the PVC
pipe to constitute security bars. Nowlin conceded that she was “not sure [whether]
placing a PVC pipe in at an angle or a piece of wood” actually secured the exterior
sliding glass doors, and she noted that the type of security bars that would “go across
the middle of [a] door” would provide additional security for the property. In fact,
Nowlin had installed such security bars at other properties that she owned.
Further, Nowlin acknowledged that the exterior sliding glass doors did not
have pin locks when she purchased the property and Keaton had told her that the
handle latches on the exterior sliding glass doors did not work. Additionally, Nowlin
affirmed that the inspector, who inspected the property prior to Nowlin’s purchase,
also notified her that the handle latches on the upstairs exterior sliding glass doors
17
needed to be adjusted and did not latch. A copy of the inspector’s report, which the
trial court admitted into evidence, states, in part: “The handle locks for all three
sliding glass doors along the [west] side of the house need to be adjusted” because
the locks do not latch.
Nowlin also explained that on her inventory and condition form, which
Nowlin conceded listed items at the property that were damaged or in need of repair,
Keaton noted that the upstairs living room exterior sliding glass door did not lock.
And Nowlin confirmed that Keaton referred to the lack of security bars on the
exterior sliding glass doors in the June 11, 2014 letter to Nowlin. Moreover, in a
July 28, 2014 email to Nowlin, Keaton notified her that the “locks on the [exterior]
sliding glass doors” were in need of “services and repairs.” At some point while
Keaton still lived at the property, Nowlin’s contractors readjusted the handle latches
on the exterior sliding glass doors to “ma[k]e them easier to lock.” In Nowlin’s
opinion, the handle latches on the exterior sliding glass doors always functioned
while Keaton lived at the property.
On September 4, 2014, Nowlin served Keaton with her third notice to vacate.
Nowlin testified that this notice to vacate was served after the jury in Nowlin’s
forcible-detainer action had found in favor of Keaton. The September 4, 2014 notice
to vacate, a copy of which the trial court admitted into evidence, states, in part:
Re: TAA Lease Contract dated 4/12/14
between [Keaton] and Linda Nowlin (owner)[.]
18
You are in arrears on your rental payments in the amount of $6,300.00.
Because of your continued violations of the Lease Agreement,
including your refusal to provide entry for maintenance upon demand
and your non-payment of rent, your residency is terminated effective
immediately. You are hereby given notice to vacate the premises
before 11:59, p.m., [September] 5, 2014,[18] which is at least one day
from the delivery of this notice in accordance with your lease contract.
Failure to move out by then will result in an eviction suit being filed
against you. Delay or postponement of such action does not waive our
rights. You are liable for all rent due under the full term of your
contract, damages to the premises, legal fees and any other charges due
under the terms of your agreement.
According to Nowlin, the September 4, 2014 notice to vacate, asserted that
Keaton had failed to pay $6,300 in rent, which included Keaton’s rent for the months
of July and August. Nowlin made that assertion even though she knew that the jury,
in her forcible-detainer action, did not find that she was entitled to unpaid rent for
the months of July and August and even though she knew that she had actually
prevented Keaton from paying rent pursuant to the lease agreement.
In accordance with the September 4, 2014 notice to vacate, Keaton moved out
of the property on September 5, 2014, which Nowlin opined was before the end of
the lease term. Keaton failed to give Nowlin written notice of her move-out, did not
pay all of the rent that Nowlin believed she was owed, and did not pay the $1,785
18
The September 4, 2014 notice to vacate mistakenly listed August 5, 2014, rather
than September 5, 2014, as the date by which Keaton was required to vacate the
property. Nowlin testified that this was a “typo.”
19
reletting fee. Nowlin stated that she did not consent to Keaton moving out on or
before September 5, 2014, although she wanted Keaton to leave and had tried to
evict her.
After Keaton vacated the property, Nowlin discovered that the property had
been damaged, and Nowlin spent $13,738 repairing damages she believed that
Keaton had caused. We note that Nowlin testified extensively as to the purported
damage that Keaton caused to the property, and the trial court admitted into evidence
numerous photographs of the property taken by Nowlin. The trial court also
admitted into evidence a spreadsheet, dated June 15, 2015, which purported to
account for the property’s “repairs or damages caused by negligence, carelessness,
accident or abuse.” Nowlin testified that she did not include amounts for normal
“wear and tear” in her accounting, did not charge Keaton for items that were listed
on the inventory and condition form, and did not cause any of the damages to the
property herself. Nowlin stated that she could not recall ever sending Keaton a copy
of the spreadsheet. According to Nowlin, Keaton did not pay or reimburse her for
the $13,738 that she had spent repairing the damage to the property.
Nowlin further testified that after Keaton vacated the property, she did not
return Keaton’s $2,000 security deposit because Keaton “owed more in rent than the
amount of the security deposit,” including rent for the month of September 2014.
On October 4, 2014, Nowlin sent Keaton an email, a copy of which the trial court
20
admitted into evidence, with a subject line stating: “Security Deposit Accounting.”
That email states, in part:
I am sending this to the last known email address I have for you because
you did not designate a physical forwarding address after you moved
out, as required by the lease agreement. The lease requires that I send
you an accounting of your security deposit within thirty days of your
leaving the property. That accounting is as follows:
Because you have unpaid rent that exceeds your $2,000.00 security
deposit, you are not entitled to a refund of any portion thereof.
Nowlin testified that her October 4, 2014 email did not “provide an itemized list of
all rent and damages due.”
In response to Nowlin’s email, Keaton’s attorney sent an email, a copy of
which the trial court admitted into evidence, requesting that Keaton’s $2,000
security deposit be returned in full, providing Keaton’s forwarding address, and
stating that the trial court in Nowlin’s forcible-detainer action had “stated
unequivocally in open court that . . . Keaton d[id] not owe rent to . . . Nowlin.”
Nowlin acknowledged that under the Texas Property Code she had an obligation to
refund Keaton’s security deposit or “provide an accounting within 30 days” of
Keaton’s moving out of the property.
Keaton testified that she moved into the property in 2011 after signing a lease
agreement with the property’s previous owner. When Keaton moved into the
property, the locks on the exterior sliding glass doors did not function.
21
After Nowlin purchased the property, in May 2014, she, or her contractors,
began coming to the property approximately every other day. Keaton characterized
Nowlin’s intrusions as excessive and stated that Nowlin demanded “24/7” access to
the property. For instance, on May 6, 2014, the first day that the lease agreement
was in effect, Nowlin sent Keaton multiple “urgent” text messages demanding entry
to the property. And when Nowlin arrived at the property, she started opening
drawers, “taking things out,” and “putting things in” without Keaton’s permission.
On May 19, 2014, Keaton sent Nowlin a letter, a copy of which the trial court
admitted into evidence. That letter states, in part:
It is my understanding that you have four projects in the works
right now: the kitchen (which has already displaced me for a week to
a shady extended stay), the front door, the porch light, and the garage
door. It is my perception that your plans extend past those projects.
While I am quite aware of our lease regarding repairs and entry
into my home while I am your tenant, I am feeling the effect of having
my privacy, peace, and quiet disrupted. I feel that the frequency of the
visits and intrusions are becoming excessive and I fear that if I don’t
speak up, I will be allowing the precedence of unlimited intrusions into
my home and my life.
My research into the regulations and case law have educated me
about my rights to peace and quiet and my rights to privacy as your
tenant. . . . What I have found is that repairs that do not compromise
the integrity of the property nor compromise my safety or security, are
not necessary to attend while I hold present possessory interest. (Tex.
Prop. Code section 92.052a)[.] In fact, I believe that they intrude on
my right to privacy and my right to peace and quiet. (HYM Restaurants,
Inc. v Goldman Sachs &Co., 797 S.W.2d 326, 1990)[.]
22
It is my request that only repairs that may compromise the
integrity of the property or compromise my family’s safety and/or
security, be addressed and remedied while I am leasing from you.
I also request that you install a keyless deadbolt on the front door
and the downstairs entry door to ensure my privacy and security when
I am home. (Tex. Prop. Code section 92.153)[.]
(Emphasis omitted.)
After Keaton’s May 19, 2014 letter, Nowlin’s visits to the property continued,
and Nowlin became more abrasive in her demands to enter the property. On one
occasion, Keaton discovered that Nowlin’s contractors had used her personal tools
to mix concrete and that someone had entered the property while she was not there
and without providing proper notice. Keaton realized that either Nowlin or her
agents had entered the property on that particular day because “lights had been left
on in the loft, furniture had been moved away from the wall as though [Nowlin] or
her agents were inspecting outlets, . . . [a]nd an entire light fixture in the loft had
been removed.” On another occasion, Nowlin came to the property in the morning
while Keaton was still asleep. Because Nowlin failed to bring her key with her, she
knocked on the front door. When Keaton did not answer, Nowlin repeatedly called
her on her telephone until Keaton answered. After Nowlin requested that Keaton let
her into the property, Keaton informed her that she was not clothed, but she would
answer the door anyways. Keaton opined that this incident led to Nowlin serving
her with the June 4, 2014 notice to vacate.
23
On June 11, 2014, Keaton sent Nowlin another letter “point[ing] out a lot of
the violations that [Nowlin] had committed according to the [Texas] Property Code.”
The letter, a copy of which the trial court admitted into evidence, states, in part:
I received your Notice to Vacate for Breach of Lease dated June
4, 2014 and was served with an Eviction Citation on June 10, 2014. . . .
What You Want Has Changed[.]
I want to understand what you want so that I may try to
accommodate you as best as I can without unreasonably compromising
my standard of living. Prior to the closing, I believe we both wanted
the same thing: in effect, for me to pay your mortgage, taxes, and
insurance for the next year on the [property].
However, since the closing date May 6th but prior to June 1st,
and as evidenced by your correspondence (see attached) my perception
is that your desires changed to:
1) 24 hour access to the house to make inspections, repairs, and
upgrades, no matter the effect it has on the lives of me and my
family; and
2) $2100/month in rent for the next eleven months.
Since June 1st, based on your correspondence, your lack of
compliance with our lease and state statute, and the aforementioned
Notice to Vacate and Eviction suit, I believe you now want:
1) to not fulfill your lease obligations and instead, have me move
out, thereby displacing me and my family;
2) to keep my security deposit of $2000; and
3) to charge me a reletting fee of $1785.
....
I Am in Compliance with All Lease Provisions and State Statutes and
Demand an Explanation[.]
I am not in violation of Paragraph 20 – Prohibited Conducted. I
have not disturbed or threatened the rights of you or any of your agents,
and I have not disrupted your business operation. Although I asked that
you confine your entry to the [property] to the hours of 9 a.m. – 5 p.m.,
24
preferably weekdays, and only for repairs that threaten my family’s
safety or the integrity of the [property], I have never refused you entry
into the [property] when I’m present. I provided you all the keys and
access codes when you asked for them. . . .
You, as Landlord, Are in Violation of Our Lease and State Statutes[.]
1) You are in violation of Texas Property Code Sec. 92.201.
You have omitted your physical address from all
correspondence and contracts between us.
2) You are in violation of Lease Paragraph 28 – When We
(Landlord) May Enter.
You did not leave a written notice why you or your
contractors were in the loft while I was not home. This event
is documented in a May 24th email (see attached) from me to
you.
3) You are in violation of Lease Paragraph 9 – Security Devices;
Lease Paragraph 25 – Condition of the Premises and
Alterations;
Lease Paragraph 31 – Responsibilities of Owner;
Texas Property Code Sec. 92.153(a)(3) and (a)(4); and
Texas Property Code Sec. 92.157.
You have refused to install a sliding door pin lock on each
exterior sliding glass door of the dwelling and a sliding door
handle latch or a sliding door security bar on each exterior
sliding glass door of the dwelling. You were made aware of
the lack of this statutorily-mandated requirement by: a) the
inspection report; b) the lease[;] c) the move-in check list; and
d) this correspondence.
In addition, your removal of wood from around the frame of
the front door has compromised its integrity and stolen from
me and my family the peace of mind and security for which a
front door is intended. Your stated intention (see attached
email) was to repair the front door by replacing the frame to
ensure its security; instead, you made the door insecure and
have yet to schedule to repair it. According to Lease
Paragraph 31, I have the right to terminate our lease but have
25
elected not to do so. As the attached emails show, I have
satisfied the criteria required to allow me to terminate our
lease as evidenced by: a) your agent’s unfinished work on the
front door leaving it unsecure and unsafe; b) the inspection
report; c) previous emails regarding legally mandated repair
request; and d) this letter.
4) You have trespassed and you have authorized others to do so
by giving your contractors consent to store their belongings
in the garage of which I have present possessory interest.
5) You are in violation of Texas Property Code Sec. 92.331.
You are retaliating against me. I’ve exercised in good faith
my rights granted to me by our lease, municipal ordinance, or
federal or state statute. I’ve also given you notices regarding
repairs. You are breaking the law by filing an eviction
proceeding, depriving me the use of the premises, decreasing
services to me, attempting to terminate my lease, and
engaging in bad faith, in a course of conduct, that materially
interferes with my rights under our lease.
In regard to the property’s front door, Keaton explained that when she moved
into the property, in 2011, there was a wooden door that was weathered and rotting.
Eventually, Keaton, before Nowlin purchased the property, replaced that wooden
door with a metal door that she had purchased herself. At the time that Keaton
switched the front doors, she also intended to replace the front door’s frame, but she
did not complete that work before Nowlin’s purchase of the property. After the
purchase, Nowlin told Keaton that she did not want her to do any repairs to the
property and Nowlin’s contractors would finish replacing the front door’s frame.
However, when the contractors completed their work on the front door, they left it
unsecured. Specifically, the front door could not close independently and if the door
26
was not “dead[-]bolted,” then it could simply be kicked open. The contractors, while
completing their work on the front door’s frame, also caused the window next to the
front door to become unsecured, allowing an individual to “come up and kick it open
with ease.”
Keaton further testified, related to the front door, that she requested the
installation of a keyless dead bolt lock on the door. However, according to Keaton,
the lock that Nowlin’s contractors actually installed on the front door had a keyhole,
which Nowlin “wanted [Keaton] to consider [to be] keyless on the door.” In other
words, instead of a keyless dead bolt lock, a “keyed” dead bolt lock was installed on
the front door. Although Keaton did not have the key for the lock, she explained
that the lock had been manufactured with a key.
With respect to the exterior sliding glass doors on the property, Keaton
testified that there were four—three upstairs and one downstairs. All of the sliding
glass doors lacked pin locks and appropriate security bars. Also, the handle latches
on the upstairs exterior sliding glass doors did not function. Keaton noted on her
inventory and condition form that the exterior sliding glass doors did not lock and
that the upstairs exterior sliding glass doors did not latch. Keaton explained that at
the time that she filled out her inventory and condition form, she did not know what
constituted a security bar. Nowlin never repaired the handle latches on the exterior
sliding glass doors and did not install pin locks or security bars.
27
In regard to the payment of rent, Keaton testified the lease agreement required
her to pay $2,100 per month for twelve months. Keaton’s rent payment was due on
the first of the month and considered late on the fourth of the month. In May 2014,
Keaton made her rent payment to the property’s previous owner, who then
transferred a prorated amount to Nowlin. In June 2014, she made a $2,100 rent
payment to Nowlin. In July 2014, when Keaton tried to make her rent payment,
Nowlin’s bank refused to accept Keaton’s direct deposit into Nowlin’s deposit
account. Thereafter, Keaton was never able to “successfully convey[] to [Nowlin]
any money for rent.” Further, after Nowlin prevented Keaton from directly
depositing her rent payments into the deposit account, Nowlin specifically told
Keaton that “she would never accept [her] rent,” including Keaton’s September 2014
rent payment. When asked at trial whether “[b]efore [she] moved out, did [she] pay
all of the rent that was due under the [lease agreement],” Keaton responded, “[Y]es.”
Keaton also opined that she was not required to pay $21,000 in rent for the remaining
ten months of the lease term because the lease agreement was no longer in effect at
the time that she vacated the property and it had been terminated by Nowlin.
Keaton moved out of the property on September 5, 2014, and in doing so, she
spent between $500 and $800 on a “storage pod.” Keaton stated that she gave
Nowlin verbal notice that she was moving out, and the lease agreement provided
exceptions to the requirement that her move-out notice be in writing.
28
When Keaton vacated the property, she left it “spotless” and in a better
condition than when she had moved in. She mowed the lawn, repaired holes and
texturized the walls in places, removed all trash, shampooed and vacuumed the
carpets, and extensively cleaned the property. According to Keaton, she did not
“leave [the property] trashed.” During Keaton’s testimony, the trial court admitted
into evidence four videotaped recordings showing the property after Keaton had
moved out.
Finally, Keaton testified that Nowlin never returned any portion of her $2,000
security deposit. According to Keaton, Nowlin told her that she was deducting
Keaton’s unpaid rent from the security deposit, and Keaton’s unpaid rent exceeded
$2,000.
Russell Maughan, a handyman, testified that he performed work at the
property for Nowlin. In regard to the property’s front door, Maughan testified that
he installed a keyless dead bolt lock on the door. And although the keyless dead bolt
lock that he installed had a keyhole, he “disconnect[ed] th[e] connecting key pin
from the outside key part to the inside latch part which basically render[ed] [the lock]
a keyless dead bolt [lock].” Thus, if someone was to put a key in or “try to pick the
lock” on the outside, the key would “spin in the cylinder and not engage the dead
bolt,” and the lock could not be operated from the outside. In Maughan’s opinion,
29
he installed, on the property’s front door, a lock that functioned as a keyless dead
bolt lock.
With respect to the exterior sliding glass doors at the property, Maughan
explained that while Keaton was living at the property, he fixed the handle latches
on the exterior sliding glass doors so that they would lock properly. More
specifically, in regard to the exterior sliding glass doors’ handle latches, Maughan
stated:
Typically there’s a bar in the track, then a little lever comes up and
latches either from the top or the bottom, depending upon the door and
how it’s installed. And almost all of them were misaligned. The
little -- what it connects to, what the latch connects to, was either too
high or too low. Not all of them but a couple of them if I remember
correctly. They weren’t adjusted properly. So I adjusted the catch
mechanism that’s in the door frame to where when they did it, they
would lock. And when I was done, they all locked properly.
Further, Maughan testified that he did not install pin locks on any of the exterior
sliding glass doors, and he was not “positive” whether “one or two of [the doors]
already had pin locks.”
The jury found in favor of Keaton on Nowlin’s breach-of-lease-agreement
claim. The jury also found in favor of Keaton on her counterclaims for failure to
refund security deposit,19 retaliation,20 and other violations of the Texas Property
19
See TEX. PROP. CODE ANN. §§ 92.103, 92.104.
20
See id. § 92.331.
30
Code.21 Specifically, the jury found that Nowlin, in bad faith, wrongfully failed to
refund Keaton’s $2,000 security deposit; Nowlin retaliated against Keaton; Nowlin,
within a reasonable time after having received a written request, failed to install a
keyless dead bolt lock on the property’s front door, install pin locks on the exterior
sliding glass doors without pin locks, install security bars on the exterior sliding glass
doors without security bars, and repair or replace the handle latches on the exterior
sliding glass doors; and $500 would reasonably compensate Keaton for Nowlin’s
failure to install, repair, or replace the aforementioned security devices.
Nowlin filed a motion for a judgment notwithstanding the verdict, asserting
that no evidence supported the jury’s failure to find that Keaton breached the lease
agreement and no evidence supported the jury’s affirmative findings on Keaton’s
counterclaims for failure to refund security deposit, retaliation, and other violations
of the Texas Property Code. Keaton moved for entry of judgment based on the jury’s
findings and for an award of attorney’s fees.22
The trial court entered a judgment that Nowlin take nothing on her claim
against Keaton for breach of lease agreement. Further, the trial court entered a
judgment in favor of Keaton on her counterclaims, and in doing so, awarded her
21
See id. §§ 92.153(a)(3), (a)(5), 92.157(a)(2), 92.158.
22
By agreement, issue of attorney’s fees was tried to the trial court.
31
$500 in actual damages, $19,100 in statutory damages, and $28,775 in attorney’s
fees.
Nowlin subsequently filed a motion for new trial, which the trial court denied.
Breach of Lease Agreement
In her first issue, Nowlin argues that the trial court erred in entering judgment
in favor of Keaton on Nowlin’s claim for breach of lease agreement because the
evidence conclusively establishes that Keaton failed to pay rent, failed to pay the
$1,785 reletting fee, and moved out before the end of the lease term without giving
written notice and paying rent in full for the entire lease term.23
When a party attacks the legal sufficiency of an adverse finding on an issue
for which she bears the burden of proof, the party must demonstrate that the evidence
establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In conducting a legal sufficiency
review, we review the evidence presented below in the light most favorable to the
jury’s verdict, crediting favorable evidence if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not. Del Lago
23
To the extent that Nowlin asserts that the trial court erred in denying her motion for
summary judgment on her breach-of-lease-agreement claim, we note that after a
trial on the merits, the denial of a motion for summary judgment may not be
reviewed on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966);
Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 509 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied).
32
Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010); City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005). A legal-sufficiency challenge may only be
sustained if the contrary position is conclusively established by the evidence. Dow
Chem., 46 S.W.3d at 241. Evidence is conclusive only if reasonable people could
not differ in their conclusions. See City of Keller, 168 S.W.3d at 816.
The jury, as the fact finder, is the sole judge of the credibility of the witnesses
and the weight to give their testimony. Id. at 819. It may choose to believe one
witness over another. Id. A reviewing court must assume that the jury resolved all
conflicts in the evidence in accordance with its decision if a reasonable fact finder
could have done so. See id. at 820. A reviewing court may not “impose [its] own
opinions to the contrary” or “substitute its judgment for that of the [jury].” Id. at
819, 822. The jury “may disregard even uncontradicted and unimpeached testimony
from disinterested witnesses,” so long as the decision to disregard is reasonable. Id.
at 820.
In Question No. 1 of its charge to the jury, the trial court asked, related to
Nowlin’s breach-of-lease-agreement claim:
Did LORI KEATON fail to comply with the [lease agreement] by:
33
1. Not paying rent and fees, and/or
2. Moving out before the end of the lease term without giving written
notice and paying rent in full for the entire lease term?
Answer “Yes” or “No.”[24]
The jury answered: “No.”
In regard to the payment of rent, the lease agreement, provided that Keaton
was to pay $2,100 each month directly into Nowlin’s deposit account for the term of
the lease. Keaton testified that her rent was due on the first of each month and was
considered late on the fourth of each month. It is undisputed that Keaton made her
rent payments in both May and June 2014.
When Keaton tried to make her July 2014 rent payment by direct deposit, as
required by the lease agreement, Nowlin’s bank refused to accept the payment into
Nowlin’s deposit account. According to Nowlin, she had placed “a hold on [any]
deposits” and “blocked” deposits into her deposit account immediately after Keaton
did not make her rent payment on July 1, 2014. Nowlin considered Keaton’s July
rent payment to be late because it was not paid on the first day of the month.
Further, Keaton testified that, after Nowlin prevented Keaton from directly
depositing her rent payments into the deposit account, Nowlin specifically told her
that “she would never accept” rent from Keaton, including Keaton’s September 2014
24
Nowlin raised no objection in the trial court to Question No. 1.
34
payment. Keaton opined that she was not required to pay $2,100 each month for the
remaining ten months of the lease term, which Nowlin had claimed she was owed,
because the lease agreement was no longer in effect and had been terminated by
Nowlin. When asked at trial whether “[b]efore [she] moved out, did [she] pay all of
the rent that was due under the [lease agreement],” Keaton responded, “[Y]es.”
Moreover, in regard to Nowlin’s forcible-detainer action, previously filed on
June 4, 2014, Nowlin testified that the jury in that case found that Keaton had not
failed to pay her rent in a timely matter, and the trial court entered judgment in favor
of Keaton, which the Austin Court of Appeals affirmed.25 Nowlin acknowledged at
trial that the jury in her forcible-detainer action determined that Keaton did not
violate the lease agreement for making her July rent payment “late.” And when
asked whether the judgment in the forcible-detainer action stated that “Keaton did
not violate the lease [agreement by] paying late or not paying [rent] through August
2014,” Nowlin responded, “I believe that’s correct.” (Emphasis added.) Nowlin
further admitted that there was no longer any controversy concerning the amount of
rent at issue in her forcible-detainer action, i.e. Keaton’s July and August rent
payments. And an email from Keaton’s attorney to Nowlin stated that the trial court
in Nowlin’s forcible-detainer action had “stated unequivocally in open court
that . . . Keaton d[id] not owe rent to . . . Nowlin.”
25
See Nowlin, 2015 WL 3542895, at *1–8.
35
On appeal, Nowlin argues that the jury was required to answer “yes” to
Question No. 1 if Keaton did any one of the following: (1) failed to pay rent owed
to Nowlin under the lease agreement; (2) failed to pay any fees owed to Nowlin
under the lease agreement; (3) moved out of the property before the end of the lease
term without giving written notice; or (4) moved out of the property before the end
of the lease term without paying rent in full for the entire lease term. We disagree.
Notably, the trial court, in regard to Nowlin’s breach-of-lease agreement
claim, asked the jury whether Keaton failed to comply with the lease agreement by:
(1) failing to pay rent and fees owed under the lease agreement; and/or (2) moving
out of the property before the end of the lease term without giving written notice and
without paying rent in full for the entire lease term. See In re Brookeshire Grocery
Co., 250 S.W.3d 66, 69–70 (Tex. 2008) (“‘And’ is conjunctive . . . . ‘[A]nd and or
are not interchangeable . . . .’” (quoting Bayou Pipeline Corp. v. R.R. Comm’n of
Tex., 568 S.W.2d 122, 125 (Tex. 1978)); In re L.K., No. 02-18-00049-CV, 2018 WL
5832131, at *3 n.4 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.); see
also Bd. of Ins. Comm’rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908
(Tex. 1944) (“Ordinarily the words ‘and’ and ‘or,’ are in no sense interchangeable
terms[;] . . . the former being strictly of a conjunctive, the latter, of a disjunctive,
nature.”); Bridwell v. State, Nos. 05-07-00258-CR, 05-07-00259-CR 2008 WL
467271, at *7 (Tex. App.—Dallas Feb. 23, 2008, no pet.) (mem. op., not designated
36
for publication) (jury instructions which included “and/or” “presented th[e] three,
different material facts in the disjunctive” (internal quotations omitted)); Sedillo v.
Valtierra, 115 S.W.3d 52, 53 (Tex. App.—San Antonio 2003, pet. denied) (term
“and/or” can be used to imply that “either or both of the things mentioned may be
affected or involved” (emphasis added) (quoting And/or, RANDOM HOUSE
WEBSTER’S COLLEGE DICTIONARY (2d ed. 1999))); Dubose v. Reed, No.
14-94-00546-CV, 1995 WL 417049, at *3 (Tex. App.—Houston [14th Dist.] July
13, 1995, no writ) (not designated for publication) (“Question three was phrased in
both the conjunctive and disjunctive; that is, question three asked whether Dubose
‘and/or’ Virginia City owned the horse, ‘Jim.’ In other words, the jury could find
that Dubose and Virginia City jointly owned the horse in question or that either
Dubose, individually, or Virginia City owned the horse.”).
Here, the jury heard evidence that Keaton paid rent and vacated the property
only after “pay[ing] all of the rent that was due under the [lease agreement].” And
we note that the jury, as the fact finder, was the sole judge of the credibility of the
witnesses and the weight to give their testimony. City of Keller, 168 S.W.3d at 819.
Further, the jury could choose to believe one witness over another and could resolve
inconsistencies in the testimony of any witness. Id. at 819–20; McGalliard v.
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
37
Thus, we conclude that Nowlin has not established as a matter of law that
Keaton failed to comply with the lease agreement by “[n]ot paying rent and fees” or
by “[m]oving out before the end of the lease term without giving written notice and
paying rent in full for the entire lease term.” (Emphasis added.) Accordingly, we
hold that the evidence is legally sufficient to support the jury’s failure to find that
Keaton did not comply with the lease agreement and the trial court did not err in
entering judgment in favor of Keaton on Nowlin’s claim for breach of lease
agreement.
We overrule Nowlin’s first issue.
Due to our disposition above, we need not address Nowlin’s arguments that
she “is entitled to [a] judgment as a matter of law that [Keaton] was not excused”
from failing to comply with the lease agreement and that Keaton “is liable to
[Nowlin] in [the] total amount of $20,785” on Nowlin’s breach-of-lease-agreement
claim. See TEX. R. APP. P. 47.1.
Failure to Refund Security Deposit
In her second issue, Nowlin argues that the trial court erred in entering
judgment in favor of Keaton on Keaton’s counterclaim for failure to refund security
deposit because the evidence shows that the lease agreement “provides that any rent
owed and delinquent at the time of move-out [could] be deducted from [Keaton]’s
security deposit,” Nowlin “made one deduction [from] the security deposit, in its full
38
amount of $2,000, because [Keaton] owed rent at least in the amount of $2,100 for
the month of September,” and Nowlin sent Keaton “an [a]ccounting of the deposit
that itemized and listed the sole deduction [that] she made thereto.”26 Nowlin further
asserts that Keaton was not entitled to the presumption of bad faith and there was no
evidence of “dishonesty or disregard . . . adduced at trial.”
When a party attacks the legal sufficiency of an adverse finding on an issue
for which she did not have the burden of proof, she must demonstrate that there is
no evidence to support the adverse finding. See Exxon Corp. v. Emerald Oil & Gas
Co., 348 S.W.3d 194, 215 (Tex. 2011); Examination Mgmt. Servs., Inc. v. Kersh Risk
Mgmt., Inc., 367 S.W.3d 835, 839 (Tex. App.—Dallas 2012, no pet.). We will
sustain a legal sufficiency or “no-evidence” challenge if the record shows any one
of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law
or evidence bar the court from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or
(4) the evidence establishes conclusively the opposite of the vital fact. City of Keller,
168 S.W.3d at 810. In conducting a legal-sufficiency review, we consider the
26
To the extent that Nowlin asserts that the trial court erred in denying her motion for
summary judgment on Keaton’s failure-to-refund-security-deposit counterclaim,
we note that after a trial on the merits, the denial of a motion for summary judgment
may not be reviewed on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool &
Supply, 226 S.W.3d at 509.
39
evidence in the light most favorable to the verdict and indulge every reasonable
inference that supports it. Id. at 822. The term “inference” means,
[i]n the law of evidence, a truth or proposition drawn from another
which is supposed or admitted to be true. A process of reasoning by
which a fact or proposition sought to be established is deduced as a
logical consequence from other facts, or a state of facts, already
proved. . . .
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston
[1st Dist.] 1993, writ dism’d w.o.j.) (internal quotations omitted). “For a jury to
infer a fact, it must be able to deduce that fact as a logical consequence from other
proven facts.” Id.
If there is more than a scintilla of evidence to support the challenged finding,
we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,
Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered to prove a vital
fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no
evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (internal
quotations omitted). However, if the evidence at trial would enable reasonable and
fair-minded people to differ in their conclusions, then jurors must be allowed to do
so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot substitute its
judgment for that of the trier-of-fact, so long as the evidence falls within th[e] zone
of reasonable disagreement.” Id.
40
Again, the jury, as the fact finder, is the sole judge of the credibility of the
witnesses and the weight to give their testimony. Id. at 819. It may choose to believe
one witness over another. Id. A reviewing court must assume that the jury resolved
all conflicts in the evidence in accordance with its decision if a reasonable fact finder
could have done so. See id. at 820. A reviewing court may not “impose [its] own
opinions to the contrary” or “substitute its judgment for that of the [jury].” Id. at
819, 822. The jury “may disregard even uncontradicted and unimpeached testimony
from disinterested witnesses,” so long as the decision to disregard is reasonable. Id.
at 820.
Chapter 92, subchapter C of the Texas Property Code governs security
deposits in residential leases. See TEX. PROP. CODE ANN. §§ 92.101–.110. A
security deposit is defined as “any advance of money, other than a rental application
deposit or an advance payment of rent, that is intended primarily to secure
performance under a lease of a dwelling.” Id. § 92.102.
A landlord is required to refund a security deposit to the tenant on or before
the thirtieth day after the date the tenant surrenders the premises. Id. § 92.103(a).
However, before returning a security deposit, the landlord may deduct from the
security deposit damages and charges for which the tenant is legally liable under the
lease agreement or as a result of breaching the lease agreement. Id. § 92.104(a). The
41
landlord may not retain any portion of the security deposit to cover normal wear and
tear. Id. § 92.104(b).
If the landlord retains all or part of the security deposit, the landlord shall give
the tenant, within thirty days of the tenant’s surrender of the premises: (1) the
balance of the security deposit, if any; (2) a written description of the damages; and
(3) an itemized list of all deductions. Id. § 92.104(c). However, the landlord is not
obligated to return a tenant’s security deposit or give the tenant a written description
of the damages and an itemized list of the deductions until the tenant gives the
landlord a written statement of the tenant’s forwarding address for the purpose of
returning the security deposit. Id. § 92.107(a).
Chapter 92, subchapter C of the Texas Property Code establishes two causes
of action that permit a tenant to seek recovery of her security deposit from her
landlord. See id. § 92.109 (liability of landlord). Each of these causes of action
provides the tenant with a different remedy. Relevant to this case, the first cause of
action involves a landlord’s bad faith retention of the security deposit. See id.
§ 92.109(a). To prevail under that cause of action, the tenant must prove that the
landlord: (1) acted in bad faith and (2) retained the security deposit in violation of
chapter 92, subchapter C of the Texas Property Code. Id. When a landlord is found
liable under section 92.109(a), the tenant may recover from the landlord: (1) an
amount equal to the sum of $100; (2) three times the portion of the security deposit
42
wrongfully withheld; and (3) the tenant’s reasonable attorney’s fees in a suit to
recover the security deposit. Id.
When a tenant sues a landlord to recover her security deposit under the above
cause of action, the tenant must prove the landlord acted in bad faith. See id.
§ 92.109(a), (b). Bad faith is presumed when a landlord fails to: (1) return the
security deposit or (2) provide a written description of the damages and an itemized
list of all deductions within thirty days after the tenant surrenders the premises. Id.
§ 92.109(d). A landlord acts in bad faith when she retains the security deposit in
dishonest disregard of the tenant’s rights. See Pulley v. Milberger, 198 S.W.3d 418,
428 (Tex. App.—Dallas 2006, pet. denied). Bad faith implies an intention to deprive
the tenant of a lawfully due refund. See Pulley, 198 S.W.3d at 428; Leskinen v.
Burford, 892 S.W.2d 135, 136 (Tex. App.—Houston [14th Dist.] 1994, no writ).
Absent rebutting evidence, the presumption that the landlord acted in bad faith
compels a finding of bad faith. See Pulley, 198 S.W.3d at 428. Even when a landlord
defeats the presumption of bad faith as to the failure to return a security deposit, the
landlord still must prove the retention of any portion of the security deposit was
reasonable. See TEX. PROP. CODE ANN. § 92.109(c); Pulley, 198 S.W.3d at 429.
Here, in Question No. 4 of its charge, the trial court asked the jury, related to
Keaton’s failure-to-return-security-deposit counterclaim:
Did LINDA S. NOWLIN wrongfully fail to refund any portion
of LORI KEATON’s security deposit?
43
A security deposit is any advance of money, other than a rental
application deposit or an advance payment of rent, that is intended
primarily to secure performance under a lease of a dwelling that has
been entered into by a landlord and a tenant. A landlord shall refund
the security deposit to the tenant not later than the 30th day after the
date the tenant surrenders the premises.
Before returning the 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, but may not
retain any portion of a security deposit to cover normal wear and tear.
“Normal wear and tear” means deterioration that results from the
intended use of a dwelling, including breakage or malfunction due to
age or deteriorated condition, but does not include deterioration that
results from negligence, carelessness, accident, or abuse of the premises
by a member of the tenant’s household, or by a guest or invitee of the
tenant.
If the landlord retains all or part of a security deposit under this
section, the landlord shall give to the tenant the balance of the security
deposit, if any, together with a written description and itemized list of
all deductions.
The landlord is not obligated to return a tenant’s security deposit
or give the tenant a written description of damages and charges until
the tenant gives the landlord a written statement of the tenant’s
forwarding address for the purpose of refunding the security deposit.
The tenant does not forfeit the right to a refund of the security deposit
or the right to receive a description of damages and charges merely for
failing to give a forwarding address to the landlord.
Answer “Yes” or “No.”[27]
The jury answered: “Yes.”
27
Nowlin raised no objection in the trial court to Question No. 4.
44
On October 4, 2014, Nowlin sent Keaton an email with a subject line stating:
“Security Deposit Accounting.” That email states, in part:
I am sending this to the last known email address I have for you because
you did not designate a physical forwarding address after you moved
out, as required by the lease agreement. The lease requires that I send
you an accounting of your security deposit within thirty days of your
leaving the property. That accounting is as follows:
Because you have unpaid rent that exceeds your $2,000.00 security
deposit, you are not entitled to a refund of any portion thereof.
Nowlin admitted that her October 4, 2014 email did not “provide an itemized list of
all rent and damages due.”
Nowlin argues that the evidence is legally insufficient to support the jury’s
finding that she wrongfully failed to refund any portion of Keaton’s security deposit
because the lease agreement “provides that any rent owed and delinquent at the time
of move-out [could] be deducted from [Keaton]’s security deposit” and Nowlin
“made one deduction [from] the security deposit, in its full amount of $2,000,
because [Keaton] owed rent at least in the amount of $2,100 for the month of
September at the time she abandoned the [p]roperty.”
However, as discussed related to Nowlin’s first issue, the jury heard evidence
that Keaton paid rent and vacated the property only after “pay[ing] all of the rent
that was due under the [lease agreement].” In other words, the record contains
evidence that Keaton did not owe rent, including her September 2014 rent payment,
at the time she vacated the property. And the jury, as the fact finder, was the sole
45
judge of the credibility of the witnesses and the weight to give their testimony. City
of Keller, 168 S.W.3d at 819. It could choose to believe one witness over another
and could resolve inconsistencies in the testimony of any witness. Id.; McGalliard,
722 S.W.2d at 697.
Here, we cannot say that the jury’s finding that Nowlin wrongfully failed to
refund any portion of Keaton’s security deposit is not supported by more than a
scintilla of evidence.
In Question No. 6 of its charge, the trial court asked the jury, related to
Keaton’s failure-to-return-security-deposit counterclaim:
Did LINDA S. NOWLIN fail to refund any portion of LORI
KEATON’s security deposit in bad faith?
You are instructed that a landlord acts in “bad faith” when he or
she retains a security deposit in dishonest disregard of the tenant’s
rights or with the intent to deprive the tenant of a lawfully due refund.
A landlord who fails to return a security deposit or give a written
description and itemized list of all deductions on or before the 30th day
after the tenant surrenders possession and provides a forwarding
address is presumed to have acted in bad faith. To defeat this
presumption, a landlord must prove [her] “good faith,” which means
honesty in fact in the conduct or transaction concerned.
Answer “Yes” or “No.”[28]
The jury answered: “Yes.”
28
Nowlin raised no objection in the trial court to Question No. 6.
46
In a single conclusory paragraph in her brief, Nowlin argues that the evidence
is legally insufficient to support the jury’s finding that she failed to refund any
portion of Keaton’s security deposit in bad faith because the presumption of bad
faith does not apply. And absent the presumption, Keaton was required to prove that
Nowlin “retained some portion of the security deposit in dishonest disregard of
[Keaton]’s rights.” Here, according to Nowlin, no evidence of such dishonesty or
disregard was adduced at trial.
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “This is not done
by merely uttering brief conclusory statements, unsupported by legal citations.”
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr.
Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (appellant
bears burden of discussing assertions of error). A failure to provide substantive
analysis of an issue or cite appropriate authority waives a complaint on appeal.
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas
2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
47
Nevertheless, in regard to the merits of Nowlin’s argument, we note that, even
without taking into account the presumption of bad faith, the jury, in the instant case,
heard evidence that Nowlin refused to refund any portion of Keaton’s security
deposit even though Nowlin had: (1) placed “a hold” on her deposit accounts
preventing Keaton from paying her rent by the method prescribed by the lease
agreement, (2) specifically told Keaton that “she would never accept [her] rent,”
including Keaton’s September 2014 rent payment, and (3) lost her forcible-detainer
action, wherein the jury found that Keaton had not failed to timely pay her rent and
she had not “violate[d] the lease [agreement by] paying late or not paying [rent]
through August 2014.” (Emphasis added.) And the jury heard evidence that Keaton
had actually paid rent and vacated the property only after “pay[ing] all of the rent
that was due under the [lease agreement].”
The trial court’s charge to the jury in Question No. 6 defined “bad faith” as
follows: “[A] landlord acts in ‘bad faith’ when he or she retains a security deposit
in dishonest disregard of the tenant’s rights or with the intent to deprive the tenant
of a lawfully due refund.” We cannot say that the jury’s finding that Nowlin failed
to refund any portion of Keaton’s security deposit in bad faith is not supported by
more than a scintilla of evidence.
Accordingly, we hold that the evidence is legally sufficient to support the
jury’s findings that Nowlin “wrongfully fail[ed] to refund any portion
48
of . . . Keaton’s security deposit” and “fail[ed] to refund any portion of . . . Keaton’s
security deposit in bad faith” and the trial court did not err in entering judgment in
favor of Keaton on Keaton’s counterclaim for failure to refund security deposit.
(Emphasis omitted.)
We overrule Nowlin’s second issue.
Due to our disposition above, we need not address Nowlin’s argument that
that the jury’s finding in response to Question No. 5, i.e., that Nowlin wrongfully
failed to refund $2,000 of Keaton’s security deposit, should be disregarded because
Nowlin, as a matter of law, did not wrongfully fail to refund any portion of Keaton’s
security deposit. See TEX. R. APP. P. 47.1; see also TEX. R. APP. P. 38.1(i); Tesoro
Petroleum Corp., 106 S.W.3d at 128.
Retaliation
In her third issue, Nowlin argues that the trial court erred in entering judgment
in favor of Keaton on Keaton’s counterclaim for retaliation because Keaton was
required to prove “retaliatory intent . . . by offering evidence of it other than her own
bare, self-serving speculation about [Nowlin]’s motives,” Nowlin provided reasons
for serving her three notices to vacate on Keaton, Keaton’s “defending herself
49
against eviction c[ould] only have caused the second or third notice to vacate,” and
“[t]ransmitting a notice to vacate is not a prohibited action.”29
As previously noted, when a party attacks the legal sufficiency of an adverse
finding on an issue for which she did not have the burden of proof, she must
demonstrate that there is no evidence to support the adverse finding. See Exxon
Corp., 348 S.W.3d at 215; Examination Mgmt. Servs., 367 S.W.3d at 839. If there
is more than a scintilla of evidence to support the challenged finding, we must uphold
it. Formosa Plastics Corp., 960 S.W.2d at 48.
Chapter 92 of the Texas Property Code prohibits retaliation by a landlord
against a tenant and provides a tenant with a right to recover against a landlord who
retaliates. See TEX. PROP. CODE ANN. § 92.331; see also Dall. Hous. Auth. v. Nelson,
05-13-00818-CV, 2015 WL 1261953, at *3 (Tex. App.—Dallas Mar. 19, 2015, pet.
denied) (mem. op.); San Antonio Hous. Auth. Found., Inc. v. Smith, No.
04-10-00759-CV, 2011 WL 3627699, at *2 (Tex. App.—San Antonio Aug. 17,
2011, no pet.) (mem. op.). Texas Property Code section 92.331(a) provides:
A landlord may not retaliate against a tenant by taking an action
described by [s]ubsection (b) because the tenant: (1) in good faith
exercises or attempts to exercise against a landlord a right or remedy
granted to the tenant by lease, municipal ordinance, or federal or state
29
To the extent that Nowlin asserts that the trial court erred in denying her motion for
summary judgment on Keaton’s retaliation counterclaim, we note that after a trial
on the merits, the denial of a motion for summary judgment may not be reviewed
on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, 226 S.W.3d at
509.
50
statute[] [or] (2) gives a landlord a notice to repair or exercise a remedy
under this chapter.
TEX. PROP. CODE ANN. § 92.331(a). Section 92.331(b) further provides:
[The] landlord may not, within six months after the date of the tenant’s
action under [s]ubsection (a), retaliate against the tenant by: (1) filing
an eviction proceeding, except for the grounds stated by Section
92.332; (2) depriving the tenant of the use of the premises, except for
reasons authorized by law; (3) decreasing services to the tenant;
(4) increasing the tenant’s rent or terminating the tenant’s lease; or
(5) engaging, in bad faith, in a course of conduct that materially
interferes with the tenant’s rights under the tenant’s lease.
Id. § 92.331(b).
In Question No. 7 of its charge, the trial court asked the jury, related to
Keaton’s retaliation counterclaim:
Did LINDA S. NOWLIN retaliate against LORI KEATON?
You are instructed that:
a. A landlord may not retaliate against a tenant by taking an action
described under (b) because the tenant:
1. in good faith exercises or attempts to exercise against a
landlord a right or remedy granted to the tenant by lease,
municipal ordinance, or federal or state statute; or
2. gives a landlord a notice to repair or exercise a remedy under
this chapter.
b. A landlord may not, within six months after the date of the tenant’s
action under (a), retaliate against the tenant by:
51
1. filing an eviction proceeding, except as stated below in (c) or
(d);
2. increasing the tenant’s rent or terminating the tenant’s lease;
or
3. engaging in bad faith, in a course of conduct that materially
interferes with the tenant’s rights under the tenant’s lease.
c. The landlord is not liable for retaliation if the landlord proves that
the action was not for purposes of retaliation.
d. Eviction or lease termination based on the following circumstances,
which are valid grounds for eviction or lease termination in any
event, does not constitute retaliation.
1. the tenant is delinquent in rent when the landlord gives notice
to vacate or files an eviction action;
2. the tenant, a member of the tenant’s family, or a guest or
invitee of the tenant intentionally damages property on the
premises.
Answer “Yes” or “No.”[30]
The jury answered: “Yes.”
In her third amended answer and counterclaims, Keaton alleged, in part,
related to her retaliation counterclaim, that after she prevailed in Nowlin’s
forcible-detainer action, Nowlin, in retaliation, served Keaton with the September 4,
2014 notice to vacate. See generally Nelson, 2015 WL 1261953, at *3 (evidence of
retaliation where “within a few days of the judgment in [tenant]’s favor in
[landlord’s] previous eviction action, [landlord] served its third or fourth notice of
eviction”); Holmes v. Al Jaafreh, Nos. 10-11-00148-CV to 10-11-00154-CV, 01-14-
30
Nowlin raised no objection in the trial court to Question No. 7.
52
00313-CV, 2013 WL 2395106, at *8 (Tex. App.—Waco May 30, 2013, no pet.)
(mem. op.) (tenant asserted landlord retaliated by interrupting tenant’s utilities after
tenant prevailed in landlord’s eviction suit). At trial, the jury heard evidence that
Nowlin, on June 4, 2014, filed a forcible-detainer action against Keaton, alleging
that Keaton had breached the lease agreement by unreasonably refusing to allow
Nowlin or her agents to enter the property to make repairs or perform maintenance
and by failing to pay her rent in a timely manner. The jury in Nowlin’s
forcible-detainer action found, on August 27, 2014, that Keaton had not
unreasonably refused to allow Nowlin or her agents to enter the property and that
Keaton had not failed to pay her rent in a timely manner. And the trial court entered
judgment in favor of Keaton in that case. When asked whether the judgment in the
forcible-detainer action stated that “Keaton did not violate the lease [agreement by]
paying late or not paying [rent] through August 2014,” Nowlin testified, “I believe
that’s correct.”
After the jury rendered its verdict in Nowlin’s forcible-detainer action,
Nowlin, on September 4, 2014, served Keaton with a notice to vacate. See generally
Nelson, 2015 WL 1261953, at *3. The September 4, 2014 notice to vacate states, in
part:
Re: TAA Lease Contract dated 4/12/14
between [Keaton] and Linda Nowlin (owner)[.]
You are in arrears on your rental payments in the amount of $6,300.00.
53
Because of your continued violations of the Lease Agreement,
including your refusal to provide entry for maintenance upon demand
and your non-payment of rent, your residency is terminated effective
immediately. You are hereby given notice to vacate the premises
before 11:59, p.m., [September] 5, 2014, which is at least one day from
the delivery of this notice in accordance with your lease contract.
Failure to move out by then will result in an eviction suit being filed
against you. Delay or postponement of such action does not waive our
rights. You are liable for all rent due under the full term of your
contract, damages to the premises, legal fees and any other charges due
under the terms of your agreement.
Nowlin argues that “the transmission” of the September 4, 2014 notice to
vacate could not “form the basis for a [counter]claim of retaliation” because “it [was]
indisputable that [Keaton] was delinquent on rent at least in the amount of $2,100
by that date,” making the notice “statutorily exempt from forming the basis of a
retaliation claim,” and Keaton did not vacate the property because she received the
September 4, 2014 notice to vacate.
Here, the jury was charged that an “[e]viction or lease termination” would not
constitute retaliation where “[a] tenant [was] delinquent in rent when the landlord
g[ave] notice to vacate or file[d] an eviction action.” See TEX. PROP. CODE ANN.
§ 92.332(b)(1). However, as previously addressed, in the instant case, the jury heard
evidence that Keaton was not delinquent in her rent at the time Nowlin served the
September 4, 2014 notice to vacate; in fact, it heard evidence that Keaton had “pa[id]
all of the rent that was due under the [lease agreement]” prior to vacating the
property. Evidence that Keaton was current on her rent payments at the time that
54
Nowlin served her with the September 4, 2014 notice to vacate negates the exception
that an “[e]viction or lease termination” based on the failure to pay rent cannot
constitute retaliation. See generally Nelson, 2015 WL 1261953, at *3; cf. Williams
v. Hous. Corp. of Greater Hous., Civil Action No. H-14-2309, 2016 WL 5795136,
at *9 (S.D. Tex. Sept. 16, 2016) (tenant could not prevail on retaliation claim where
she offered no evidence to show that she was current in rent payments at the time
landlord filed eviction proceeding); Wilson v. Woodland Hills Apartments, No.
05-16-01093-CV, 2017 WL 5897900, at *3 (Tex. App.—Dallas Nov. 29, 2017, pet.
denied) (mem. op.) (no retaliation where evidence showed tenant delinquent in his
rent at time landlord served notice to vacate).
Further, Nowlin argues that her September 4, 2014 notice to vacate could not
form the basis of Keaton’s counterclaim for retaliation because a notice to vacate
can only constitute a termination of a lease agreement if the tenant vacates after
receiving the notice and “for that reason.” (Emphasis omitted.) Although Nowlin
asserts that Keaton did not vacate the property because she received the September
4, 2014 notice to vacate, and thus the notice to vacate could not support a
counterclaim for retaliation, we note that Nowlin, in her brief, provides no support,
authority, or analysis for her conclusory argument.
As previously stated, Texas Rule of Appellate Procedure 38.1(i) requires that
an appellant’s brief “contain a clear and concise argument for the contentions made,
55
with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).
“This is not done by merely uttering brief conclusory statements, unsupported by
legal citations.” Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Barham, 803
S.W.2d at 740. A failure to provide substantive analysis of an issue or cite
appropriate authority waives a complaint on appeal. Marin Real Estate Partners,
373 S.W.3d at 75; Huey, 200 S.W.3d at 854; Cervantes-Peterson, 221 S.W.3d at
255.
Based on the foregoing, we cannot say that the jury’s finding that Nowlin
retaliated against Keaton is not supported by more than a scintilla of evidence.
Accordingly, we hold that the evidence is legally sufficient to support the jury’s
finding that Nowlin retaliated against Keaton.
We overrule Nowlin’s third issue.
We note that Nowlin, in passing in her brief, asserts that Keaton “failed
adequately to allege a [counter]claim for retaliation.” To the extent that Nowlin
attempts to advance this argument on appeal, we conclude that it is waived. See
TEX. R. APP. P. 38.1(i); Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Huey,
200 S.W.3d at 854.
Other Property Code Violations
In her fourth issue, Nowlin argues that the trial court erred in entering
judgment in favor of Keaton on Keaton’s counterclaims for violations of Texas
56
Property Code sections 92.153(a)(3) and (a)(5), 92.157(a)(2), and 92.158 because
the evidence shows that Nowlin “installed a keyless bolting device on the [front]
door . . . on May 23, 2014” and “all exterior sliding glass doors providing entrance
to the [p]roperty were always equipped with security bars” and there is no evidence
that Keaton made “written requests for compliance with the [Texas] Property Code,
or for repair or installation of any of the security devices.” 31 Further, Nowlin asserts
that she cannot be held liable for failing to repair the handle latches on the exterior
sliding glass doors because the doors all had security bars.
As previously noted, when a party attacks the legal sufficiency of an adverse
finding on an issue for which she did not have the burden of proof, she must
demonstrate that there is no evidence to support the adverse finding. See Exxon
Corp., 348 S.W.3d at 215; Examination Mgmt. Servs., 367 S.W.3d at 839. If there
is more than a scintilla of evidence to support the challenged finding, we must uphold
it. Formosa Plastics Corp., 960 S.W.2d at 48.
Texas Property Code section 92.153 requires a landlord to equip a dwelling
with certain security devices, including “a sliding door pin lock on each exterior
31
To the extent that Nowlin asserts that the trial court erred in denying her motion for
summary judgment on Keaton’s counterclaims for violations of Texas Property
Code sections 92.153(a)(3) and (a)(5), 92.157(a)(2), and 92.158, we note that after
a trial on the merits, the denial of a motion for summary judgment may not be
reviewed on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, 226
S.W.3d at 509.
57
sliding glass door of the dwelling” and “a keyless bolting device . . . on each exterior
door of the dwelling.” TEX. PROP. CODE ANN. § 92.153(a)(3), (a)(5). If a landlord
does not comply with section 92.153, a 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, [the tenant may] file suit against the
landlord and obtain a judgment for . . . actual damages[,] . . . a civil penalty of one
month’s rent plus $500,” and attorney’s fees. Id. § 92.164(a)(4); Lemus v.
Cookscreek 255, LLC, No. 05-17-01085-CV, 2018 WL 6259480, at, *3 *9 (Tex.
App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (Texas Property Code section
92.164 sets out tenant remedies for a landlord’s failure to install security devices
listed in Property Code section 92.153); Hernandez v. Gallardo, 458 S.W.3d 544,
549 (Tex. App.—El Paso 2014, pet. denied).
Texas Property Code section 92.157 requires a landlord, upon a tenant’s
request, to install “a sliding door handle latch or sliding door security bar if the door
is an exterior sliding glass door without a sliding door handle latch or sliding door
security bar.” TEX. PROP. CODE ANN. § 92.157(a)(2). Texas Property Code section
92.158 requires a landlord to “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. If a landlord does not comply with section 92.157 or
section 92.158, a tenant may “file suit against the landlord and obtain a judgment
58
for . . . actual damages[,] . . . a civil penalty of one month’s rent plus $500,” and
attorney’s fees. Id. § 92.165(3).
In Question No. 8 of its charge, the trial court asked the jury, related to
Keaton’s counterclaims for violations of Texas Property Code sections 92.153(a)(3)
and (a)(5), 92.157(a)(2), and 92.158:
Did LINDA S. NOWLIN fail to do any of the following within
a reasonable time, presumed to be seven days, after receiving a written
request?
Answer “Yes” or “No” for each:
a. Install a keyless dead bolt on the main entrance of the premises.
b. Install a sliding door pin lock for any exterior sliding glass door
without a sliding door pin lock.
c. Install a sliding door security bar for any exterior sliding glass door
without a sliding door security bar.
d. Repair and replace the sliding door handle latch on any exterior
sliding glass door.[32]
The jury answered: “Yes” for each.
A. Keyless Dead Bolt Lock
Nowlin concedes that on May 19, 2014, Keaton requested the installation of
a keyless dead bolt lock on the property’s front door. Nowlin argues that the
evidence is legally insufficient to support the jury’s finding that she failed to install
32
Nowlin raised no objection in the trial court to Question No. 8.
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a keyless dead bolt lock on the property’s front door because the evidence shows
that Nowlin “installed a keyless bolting device” and Keaton was required to prove
that the lock that was installed by Nowlin did not constitute a keyless dead bolt lock.
Keaton testified that she requested the installation of a keyless dead bolt lock
on the front door of the property. However, according to Keaton, the lock that
Nowlin’s contractors actually installed on the front had a keyhole, which Nowlin
“wanted [Keaton] to consider [to be] keyless.” In other words, Keaton testified that
instead of a keyless dead bolt lock, a “keyed” dead bolt lock was installed on the
property’s front door. Although Keaton did not have the key for the lock, she
explained that the lock had been manufactured with a key. Maughan, a handyman
who installed the lock on the front door, testified that the lock that he installed on
the door had a keyhole.
Although Nowlin and Maughan also testified that the lock that was installed
on the property’s front door could not be operated from the outside, and, thus,
functioned as a keyless dead bolt lock, the jury, as the fact finder, was the sole judge
of the credibility of the witnesses and the weight to give their testimony. City of
Keller, 168 S.W.3d at 819. And it could choose to believe one witness over another
and could resolve inconsistencies in the testimony of any witness. Id.; McGalliard,
722 S.W.2d at 697.
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Further, to the extent that Nowlin asserts that the lock actually installed on the
property’s front door “constitute[d] a keyless bolting device under the definition
provided by” Texas Property Code section 92.151, we note that the trial court, in its
charge to the jury, did not define the term “keyless dead bolt,” and Nowlin did not
object to the lack of a definition. Moreover, the court instructed the jury: “If [the]
instructions use a word in a way that is different from its ordinary meaning, use the
meaning [that the court] give[s] you, which will be a proper legal definition.” Thus,
here, we must measure the sufficiency of the evidence against the
commonly-understood meaning of “keyless dead bolt.” See Jerry L. Starkey, TBDL,
L.P. v. Graves, 448 S.W.3d 88, 109 (Tex. App.—Houston [14th Dist.] 2014, no pet.);
Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex. App.—Houston [14th Dist.] 2008,
no pet.); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding, when
no objection is made to jury issue, sufficiency of evidence is measured against
charge given by court rather than some other unidentified law).
As charged, we cannot say that the jury’s finding that Nowlin, within a
reasonable time after receiving a written request, failed to “[i]nstall a keyless dead
bolt on the main entrance of the premises” is not supported by more than a scintilla
of evidence. Accordingly, we hold that the evidence is legally sufficient to support
the jury’s finding that Nowlin failed to install a keyless deadbolt lock.
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B. Pin Locks
Nowlin appears to concede that she never actually installed any pin locks at
the property. However, she argues that the evidence is legally insufficient to support
the jury’s findings that she, within a reasonable time after receiving a written request,
failed to “[i]nstall a sliding door pin lock [on] any exterior sliding glass door
without” one, because there is no evidence that Keaton ever made a request for
compliance with Texas Property Code section 92.153(a)(3) or a request for the
installation of pin locks on any door.
The trial court, in its charge to the jury, did not define the term “request” and
Nowlin did not object to the lack of a definition. As noted previously, the trial court
instructed the jury: “If [the] instructions use a word in a way that is different from
its ordinary meaning, use the meaning [that the court] give[s] you, which will be a
proper legal definition.” Thus, here, we must measure the sufficiency of the
evidence against the commonly-understood meaning of the word “request.” See
Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d at 323; see also Osterberg, 12
S.W.3d at 55.
The lease agreement stated that Nowlin was required by Texas law to provide
pin locks on the exterior sliding glass doors at the property. And Nowlin
acknowledged that none of the exterior sliding glass doors had pin locks at the time
that she purchased the property.
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Keaton, on her inventory and condition form, which she completed at the
beginning of the lease term and which Nowlin signed, stated that the exterior sliding
glass doors at the property did not have pin locks. And Nowlin conceded that
Keaton’s inventory and condition form listed items at the property that were
damaged or in need of repair.
Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of
the violations that [Nowlin] had committed according to the [Texas] Property Code.”
Specifically, in that letter, Keaton told Nowlin that she had not “install[ed] a sliding
door pin lock on each exterior sliding glass door of the [property].” And Keaton
stated, that the June 11, 2014 letter, in addition to the lease agreement, inventory and
condition form, was intended to notify Nowlin of that failure.
Moreover, in her July 28, 2014 email to Nowlin, Keaton stated: “[P]erhaps
you might plan services and repairs which are needed, such as installing a keyless
deadbolt on the front door, locks on the sliding glass doors, or the light fixture
outside the front door. Those are much more urgent than termite treatment for a
house that has been inspected specifically for termites in the last three months and
found to be without termites.” (Emphasis added.)
The definition of the word “request,” as a verb, is: “[t]o ask for (something);
to solicit; to make a request to or of (one); followed by an infinitive.” Byars v. Byars,
182 S.W.2d 363, 364 (Tex. 1944) (internal quotations omitted). The definition of
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the word “request,” as a noun is: “[a]ct or instance of asking for something or some
action desired; expression of desire; entreaty; petition; that which is asked for.” Id.
(internal quotations omitted); see also Request, WEBSTER’S NEW WORLD COLLEGE
DICTIONARY (5th ed. 2014) (defining “request” as a verb as “to express a wish or
desire for; ask for[;] . . . to ask a person to do something”; defining “request” as a
noun as “the act of asking, or expressing a desire, for something”).
As charged, we cannot say that the jury’s finding that Keaton made a “request”
for the “[i]nstall[ation of] a sliding door pin lock for any exterior sliding glass door
without a sliding door pin lock” is not supported by more than a scintilla of evidence.
Accordingly, we hold that the evidence is legally sufficient to support the jury’s
finding that Nowlin failed to install a pin lock.
C. Security Bars
Nowlin first asserts that Keaton did not adequately plead her counterclaim for
failure “to install security bars on certain [exterior] sliding glass doors in violation
of [Texas Property Code section] 92.157.”
A trial court must submit jury questions that are raised by the written
pleadings and the evidence. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992);
Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 823 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied); see also TEX. R. CIV. P. 278. To support
submission of a jury question, a party’s pleadings must give the opposing party fair
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and adequate notice of the facts upon which the pleader relies so that the opposing
party has sufficient notice and information to prepare her defense. Murray v. O &
A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Rosenbloom Mach., 995 S.W.2d
at 823. Thus, in determining whether Keaton’s pleadings were sufficient to support
a question on Nowlin’s failure to install a security bar, we focus on the notice
Keaton’s pleadings provided Nowlin, and her opportunity to prepare a defense on
Keaton’s counterclaim that Nowlin violated Texas Property Code section
92.157(a)(2) by failing to install a security bar.
Pleadings must “[c]onsist of a statement in plain and concise language of the
[party]’s cause of action.” Willock v. Bui, 734 S.W.2d 390, 392 (Tex. App.—
Houston [1st Dist.] 1987, no writ) (first alteration in original) (internal quotations
omitted); see also TEX. R. CIV. P. 45(b); Rosenboom Mach., 995 S.W.2d at 823. Fair
notice has been given if the pleadings are sufficiently specific so that an opposing
party can ascertain from the pleadings the nature and basic issues of the controversy
and the probable relevant testimony. Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 896 (Tex. 2000); Estate of Menifee v. Barrett, 795 S.W.2d 810, 812
(Tex. App.—Texarkana 1990, no writ); see also Rosenboom Mach., 995 S.W.2d at
823–24.
Keaton, in her third amended answer and counterclaims, alleged that Nowlin
“violated Texas Property Code section 92.157(a)(2) when she refused to comply
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with [Keaton]’s June 11, 2014[] request for the installation of a . . . security bar on
th[e] exterior sliding glass doors.” Further, Keaton pleaded that she sought damages
“under Texas Property Code section 92.164(a)(4), in the amount of $7,800, which
represents the statutory penalty of one month’s rent ($2,100) plus $500[,] multiplied
by four doors,” and attorney’s fees.
Nowlin asserts that Keaton did not “ma[k]e an adequate allegation of liability
for failing to install security bars” because she referenced the wrong Texas Property
Code section under which she would be entitled to damages. Compare TEX. PROP.
CODE ANN. § 92.164(a)(4), with id. § 92.165(3). However, a pleading may still
provide adequate and fair notice to the opposing party even where it refers to the
wrong section of a statute. See Auld, 34 S.W.3d at 896–97 (party’s answer “pleaded
sufficient facts to give adequate and fair notice to [opposing party] . . . even though
the pleading referred to an incorrect version of the statute”); Tex. State Bd. of
Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 703 (Tex. App.—Austin
2013, no pet.); see also CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc.,
809 S.W.2d 577, 586 (Tex. App.—Dallas 1991, writ denied) (“A pleading that gives
adequate notice will not fail merely because the draftsman named it improperly.”).
We conclude that Keaton’s pleadings provided sufficient notice to Nowlin of
Keaton’s counterclaim for a violation of Texas Property Code section 92.157(a)(2)
by failing to install a security bar.
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Nowlin next argues that the evidence is legally insufficient to support the
jury’s findings that she, within a reasonable time after receiving a written request,
failed to “[i]nstall a sliding door security bar for any exterior sliding glass door” that
lacked one, because there is no evidence that Keaton ever made a request for
compliance with Texas Property Code section 92.157(a)(2) or a request for the
installation of a security bar on any exterior sliding glass door.
As previously addressed, because the trial court, in its charge to the jury, did
not define the term “request” and Nowlin did not object to the lack of a definition,
we measure the sufficiency of the evidence against the commonly-understood
meaning of the word “request.” See Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d
at 323; see also Osterberg, 12 S.W.3d at 55.
The lease agreement stated that Nowlin was required by Texas law to provide
either a handle latch or a security bar on each exterior sliding glass door at the
property. Keaton, on her inventory and condition form, which she completed at the
beginning of the lease term and which Nowlin signed, stated that only two of the
upstairs exterior sliding glass doors had security bars. And Nowlin conceded that
Keaton’s inventory and condition form listed items at the property that were
damaged or in need of repair.
Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of
the violations that [Nowlin] had committed according to the [Texas] Property Code.”
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Specifically, in that letter, Keaton told Nowlin that she had not installed “a sliding
door security bar on each exterior sliding glass door of the [property].” And Keaton
stated, that the June 11, 2014 letter, in addition to the lease agreement and the
inventory and condition form, was intended to notify Nowlin of her failure. Nowlin
confirmed at trial that Keaton, in her June 11, 2014 letter, had referred to the lack of
security bars on the exterior sliding glass doors at the property. Moreover, in a July
28, 2014 email to Nowlin, Keaton notified Nowlin that the “locks on the [exterior]
sliding glass doors” were in need of urgent “services and repairs.”
As charged, we cannot say that the jury’s finding that Keaton made a “request”
for the “[i]nstall[ation of] a sliding door security bar for any exterior sliding glass
door” is not supported by more than a scintilla of evidence.
Nowlin further argues that the evidence is legally insufficient to support the
jury’s finding that she failed to “[i]nstall a sliding door security bar for any exterior
sliding glass door without a sliding door security bar” because the evidence clearly
established that all exterior sliding glass doors were always equipped with security
bars, i.e. “a wooden bar or plastic rod that could be placed at the bottom of the
interior side of the fixed panel of the door,” the pieces of wood or PVC pipe that laid
at the bottom of the exterior sliding glass doors constituted security bars as defined
by the Texas Property Code, and Keaton admitted on her inventory and condition
form that at least two of the sliding glass doors were equipped with security bars.
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The trial court, in its charge to the jury, did not define the term “security bar,”
and Nowlin did not object to the lack of a definition. As noted previously, the trial
court instructed the jury: “If [the] instructions use a word in a way that is different
from its ordinary meaning, use the meaning [that the court] give[s] you, which will
be a proper legal definition.” Thus, we measure the sufficiency of the evidence
against the commonly-understood meaning of the word “security bar.” See Graves,
448 S.W.3d at 109; Brown, 267 S.W.3d at 323; see also Osterberg, 12 S.W.3d at 55.
The lease agreement stated that Nowlin was required by Texas law to provide
either a handle latch or a security bar on each exterior sliding glass door at the
property. With respect to the exterior sliding glass doors on the property, Nowlin
testified that the only devices securing the exterior sliding glass doors were pieces
of wood or PVC pipe laid at the bottom of the doors. Nowlin stated that she never
purchased security bars, such as those available at home improvement stores, for the
exterior sliding glass doors because she considered the pieces of wood or the PVC
pipe that laid at the bottom of the doors to constitute security bars. However, Nowlin
conceded that she was “not sure [whether] placing a PVC pipe in at an angle or a
piece of wood” actually secured the exterior sliding glass doors, and she noted that
the security bars that would “go across the middle of [a] door” would provide
additional security for the property. In fact, Nowlin had actually installed such
security bars at other properties that she owned.
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Further, Nowlin confirmed that Keaton referred to the lack of security bars on
the exterior sliding glass doors in her June 11, 2014 letter to Nowlin. And in a July
28, 2014 email to Nowlin, Keaton notified her that the “locks on the [exterior] sliding
glass doors” were in need of repair or servicing.
With respect to the exterior sliding glass doors on the property, Keaton
testified that there were four—three upstairs and one downstairs—and all of the
sliding glass doors lacked appropriate security bars. Although Keaton, on her
inventory and condition form, which she completed at the beginning of the lease
term, noted that two of the upstairs exterior sliding glass doors had security bars,
Keaton testified that at the time that she filled out her inventory and condition form,
she did not know what constituted a security bar. Further, Keaton’s inventory and
condition form only notes, at most, that two of the exterior sliding glass doors at the
property had security bars, and it is undisputed that there were more than two exterior
sliding glass doors at the property. According to Keaton, Nowlin never installed
security bars on the exterior sliding glass doors at the property.
As charged, we cannot say that the jury’s finding that Nowlin, within a
reasonable time after receiving a written request, failed to “[i]nstall a sliding door
security bar for any exterior sliding glass door without a sliding door security bar”
is not supported by more than a scintilla of evidence. Accordingly, we hold that the
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evidence is legally sufficient to support the jury’s finding that Nowlin failed to install
a security bar.
D. Handle Latches
Nowlin first argues that the evidence is legally insufficient to support the
jury’s finding that she failed to “[r]epair and replace the sliding door handle latch on
any exterior sliding glass door” because handle latches were only required to be
installed on sliding glass doors that did not already have security bars and all of the
sliding glass doors at the property were equipped with security bars. However,
contrary to Nowlin’s argument, we have already concluded that the evidence is
legally sufficient to support the jury’s finding that Nowlin failed to “[i]nstall a
sliding door security bar.” And we note that the trial court’s charge to the jury on
Question No. 8, to which Nowlin did not object, did not require the jury to find that
the exterior sliding glass doors at the property lacked security bars before it could
find that Nowlin, within a reasonable time and after receiving a written request,
failed to “[r]epair and replace the sliding door handle latch on any exterior sliding
glass door.”
Nowlin next argues that the evidence is legally insufficient to support the
jury’s finding that she, within a reasonable time after receiving a written request,
failed to “[r]epair and replace the sliding door handle latch on any exterior sliding
glass door” because there is no evidence that Keaton ever made a request for
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compliance with Texas Property Code section 92.158 or a request for the repair of
handle latches on any exterior sliding glass door.
As previously addressed, because the trial court, in its charge to the jury, did
not define the term “request” and Nowlin did not object to the lack of a definition,
we measure the sufficiency of the evidence against the commonly-understood
meaning of the word “request.” See Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d
at 323; see also Osterberg, 12 S.W.3d at 55.
The lease agreement stated that Nowlin was required by Texas law to provide
a handle latch or a security bar for each exterior sliding glass door at the property.
Keaton, on her inventory and condition form, which she completed at the beginning
of the lease term and which Nowlin signed, stated that the handle latches on the
upstairs exterior sliding glass doors did not function. And Nowlin conceded that
Keaton’s inventory and condition form listed items at the property that were
damaged or in need of repair.
In regard to the exterior sliding glass doors, Nowlin acknowledged that
Keaton told her that the handle latches on the exterior sliding glass doors did not
work. And Nowlin affirmed that the inspector, who inspected the property prior to
Nowlin’s purchase, also notified her that the handle latches on the upstairs exterior
sliding glass doors needed to be adjusted and did not function property. The
inspector’s report states, in part: “The handle locks for all three sliding glass doors
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along the [west] side of the house need to be adjusted” because the locks do not
latch.
Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of
the violations that [Nowlin] had committed according to the [Texas] Property Code.”
Specifically, in that letter, Keaton told Nowlin that she had not “install[ed] . . . a
sliding door handle latch . . . on each exterior sliding glass door of the [property].”
And Keaton stated, that the June 11, 2014 letter, in addition to the lease agreement,
inventory and condition form, was intended to notify Nowlin of her failure.
Moreover, in her July 28, 2014 email to Nowlin, Keaton stated: “[P]erhaps
you might plan services and repairs which are needed, such as installing a keyless
deadbolt on the front door, locks on the sliding glass doors, or the light fixture
outside the front door. Those are much more urgent than termite treatment for a
house that has been inspected specifically for termites in the last three months and
found to be without termites.” (Emphasis added.)
As charged, we cannot say that the jury’s finding that Keaton made a “request”
for the “[r]epair and replace[ment of] the sliding door handle latch on any exterior
sliding glass door” is not supported by more than a scintilla of evidence.
Accordingly, we hold that the evidence is legally sufficient to support the jury’s
finding that Nowlin failed to repair and replace the handle latch.
We overrule Nowlin’s fourth issue.
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We note that Nowlin, in passing in her brief, asserts that Keaton “failed
adequately to allege a [counter]claim . . . for any violation of [Texas Property Code
section] 92.157.” To the extent that Nowlin attempts to advance this argument on
appeal, we conclude that it is waived. See TEX. R. APP. P. 38.1(i); Tesoro Petroleum
Corp., 106 S.W.3d at 128; see also Huey, 200 S.W.3d at 854.
Damages and Attorney’s Fees
In her fifth issue, Nowlin argues that the trial court erred in awarding Keaton
$500 for actual damages because Nowlin did not violate the Texas Property Code
and “[a]warding [Keaton] damages based on the cost of her renting a storage pod
during her move-out makes sense only if the jury determined that [Keaton] was
forced to move out by [Nowlin].” Due to our disposition above, we need not address
the first portion of Nowlin’s argument. See TEX. R. APP. P. 47.1. We hold the
remaining portion of Nowlin’s fifth issue is waived. See TEX. R. APP. P. 38.1(i);
Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Huey, 200 S.W.3d at 854.
In her sixth issue, Nowlin argues that the trial court erred in awarding Keaton
$19,100 in statutory damages because Keaton is not entitled to a judgment in her
favor on her counterclaims, including her counterclaims for violations of the Texas
Property Code. Nowlin asserts that Keaton’s statutory damages “should be reduced
to only such damages as are required as a result of the [counter]claims that survive
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this appeal.” Due to our disposition above, we need not address Nowlin’s sixth issue.
See TEX. R. APP. P. 47.1.
In her seventh issue, Nowlin argues that the trial court erred in awarding
Keaton attorney’s fees because Nowlin is entitled to judgment in her favor on her
claim for breach of lease agreement and Keaton is actually liable to Nowlin for her
reasonable and necessary attorney’s fees. Due to our disposition above, we need not
address Nowlin’s seventh issue. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
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