Roy Nash v. Garden City Apartments ( 2011 )

Opinion issued June 9, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00369-CV

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Roy Nash, Appellant

V.

Garden City Apartments, Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 951400

MEMORANDUM OPINION

This is an appeal from a forcible-detainer action to evict the defendant/appellant Roy Nash from the premises of the plaintiff/appellee Garden City Apartments (“Garden City”).  We affirm.

BACKGROUND

Garden City Apartments is a federally subsidized Section 8 housing project in Houston, Texas.  The majority of the residents at Garden City are adult females or children.  Nash is a male resident.   

PK Management is Garden City’s management company.  Brenda Jones is PK Management’s vice-president.  The events leading to Nash’s eviction from Garden Oaks started on September 16, 2009, when Jones was at Garden City conducting community meetings with the residents to collect specific information about their safety concerns and kick-off a crime-prevention “1-800 Tips” program.    Throughout the day at these meetings, Jones received seven or eight complaints from different residents about Nash behaving inappropriately towards children at the property.  Specifically, residence complained about his “attempt[ing] to lure children into his apartment by giving them quarters.” 

In response to these complaints, Jones and the area manager, Sonia White,[1] summoned Nash for a meeting.  Jones testified that Nash immediately said, “I know why I am here. I won’t do it anymore.”  He then explained that while he knew that many of the mothers were unhappy about him trying to give their children money, they just did not understand that he was trying to just be nice to the children.

Jones testified that during her questioning of Nash, he “stated that [he] never paid for sex with a child, but . . . hired people but they were all adults.” When pressed for specifics, he stated that he had hired “residents” of Garden City and explained “if I didn’t do it, how would they pay for their Pampers?”  At that point, Jones made the decision to terminate Nash’s lease and she thus ended the meeting.  During cross-examination at trial, Jones agreed that she did not know exactly “when Mr. Nash had sex with any of these people.”  Nash testified at trial that he has never “hired any of [his] neighbors for sex” but that he hired prostitutes 20 years ago when his wife died, and that he had not had prostitutes in his apartment or common areas since he signed his lease in 2008.      

A.   The lease

Nash’s lease introduced at trial had an initial term of September 1, 2008 to August 31, 2009, and then “continu[es] for successive terms of one month each unless automatically terminated as permitted by paragraph 23 of the Agreement.”    One ground for termination under paragraph 23 is “criminal activity by a tenant . . . . that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents . . . or that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises.”  The lease can also be terminated “if the Landlord determines that the tenant, any member of the tenant’s household, a guest or another person under the tenant’s control has engaged in the criminal activity, regardless of whether [that person] . . . has been arrested or convicted for such activity.” 

B.   The lease termination

On September 16, 2009, shortly after their meeting, Jones sent to Nash a “Termination of Residency and Federal Assistance Letter.”  It cited, as the reason for the termination:

Statement: I, Brenda Jones, Vice President and witnessed by Sonya Ross, Area Manager, am making the following statement regarding the Mr. Roy Nash admission of his involvement in Criminal Prostitution.  During a conversation with Mr. Roy Nash concerning suspicious behavior by him toward children he denied his involvement with any crime against children, but admitted to Sonya and me of hiring residents for sexual favors for money.  Management has made a decision to terminate Mr. Nash for material noncompliance of his lease for his involvement in criminal behavior at this property.

The statement was signed by both Brenda Jones and Sonya Ross. 

 After again providing written notice to vacate on September 29, 2009, Garden City filed an eviction suit. 

C.   The Trial Court Judgment

Following a bench trial, the court stated that Garden City had met its burden and announced it was rendering judgment in favor of Garden City.  It signed a final judgment on March 15, 2010. 

ANALYSIS

Nash urges two grounds for reversal of the trial court’s judgment: (1) Garden City produced no evidence that “Nash breached the operative lease,” and (2) that the termination notice “lacked the required specificity.” 

A. Breach of Operative Lease

In his first issue, Nash contends that there is no competent evidence that Nash engaged in improper conduct during the operative lease. Specifically, he argues that (1) Jones’s testimony cannot establish a breach of the operative lease because she testified that she did not know when Nash hired prostitutes, and (2) Nash’s testimony cannot establish a breach of the operative lease because he testified that he only hired prostitutes 20 years ago. 

1.     Standard of Review 

In a bench trial, when no findings of fact and conclusions of law are filed, the trial court’s judgment implies all necessary findings of fact to support it. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Baytown State Bank v. Nimmons, 904 S.W.2d 902, 904 (Tex. App.—Houston [1st Dist.] 1995, writ denied). When the implied findings of fact are supported by evidence, it is an appellate court’s duty to uphold judgment on any theory of law applicable to the case. Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Weng Enters. v. Embassy World Travel, Inc., 837 S.W.2d 217, 223 (Tex. App.—Houston [1st Dist.] 1992, no writ). Implied findings may be challenged by factual and legal sufficiency points.  Roberson, 768 S.W.2d at 281; Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1992, no writ).

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  In making this determination, we credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. Id.  So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the factfinder.  Id. at 822.  The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

2.     Discussion

At the close of the trial, the court stated that its judgment rested in part on its credibility determinations about the witnesses and testimony.  On appeal, Garden City similarly emphasizes the factfinder’s broad discretion in this regard.  Nash contends, however, that “even if the trial court believed all of Jones’ testimony and none of Nash’s testimony, Garden City still failed to provide legally sufficient evidence that Nash violated the Lease.”  Nash also cites Joseph v. Beaumont Housing Authority, 99 S.W.3d 765 (Tex. App.—Beaumont 2003, no pet.) for the proposition that a “tenant in a residential lease may only be evicted for conduct during the ‘operative lease.’” Because the “only lease before the trial court was the Lease introduced by Garden City, which became effective on September 1, 2008,” Nash insists that “Garden City was required to provide legally sufficient evidence that Nash committed a lease violation on or after September 1, 2008.”  In sum, Nash argues that Garden City’s failure to prove that Nash violated the lease—as well as its failure to prove the date of any alleged violation—renders the trial court’s judgment in favor of Garden City unsupported by legally sufficient evidence.  We disagree.

The trial court was presented with sufficient evidence that Nash violated his lease by engaging in criminal conduct while living at Garden City.  Jones not only testified that Nash admitted to paying for sex, but that he admitted to paying other residents for sex so that they would have money to buy diapers for their children. At trial, Nash denied ever paying residents for sex and testified instead that he had hired prostitutes 20 years ago. It was “within the finder of fact’s province to resolve [these] conflicts in the evidence.” Ward v. Ladner, 322 S.W.3d 692, 699 (Tex. App.—Tyler 2010, pet. denied); see also id. (“The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary.”). 

We “must . . . indulge every reasonable inference” supporting the trial court’s judgment.  Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010, no pet.).  Nash argues that Jones’s testimony left the trial court “forced to speculate” as to when Nash paid for sex, and that the court “could not infer that Nash had in fact hired prostitutes during the operative lease.”  While Nash is correct that Jones testified that she did not know exactly when Nash paid others to perform sexual acts, the evidence that it was other Garden City residents that he paid supports the reasonable inference that Nash paid for sex while residing at Garden City Apartments in violation of his lease. 

There is no evidence that Nash lived at Garden City apartments before September 1, 2008—the effective date on the lease admitted at trial.  Nonetheless, implicit in Nash’s heavy reliance on Joseph v. Beaumont Housing Authority and   his argument that Garden City “was required to provide legally sufficient evidence that Nash committed a lease violation on or after September 1, 2008” is the argument that if Nash engaged in criminal activity while living at Garden City but under an earlier lease, that criminal activity could not support the trial court’s eviction judgment.  We do not read Joseph so broadly. 

In Joseph, the Beaumont Housing Authority (“BHA”) sued an apartment tenant for eviction based on unpaid rent. 99 S.W.3d at 766.  The justice court granted the tenant possession of the property, but awarded BHA $600 in unpaid rent.  Id.  BHA appealed to the county court and, two days later, signed a new lease with the tenant.  Id.  During this new lease period, the county court heard the appeal of the justice court judgment and granted BHA possession of the premises.  Id.  On appeal, the Beaumont Court of Appeals held that the tenant was entitled to possession of the apartment under the new lease because “BHA did not amend its pleadings after executing the new lease and no violation or breach under that lease was ever alleged.”  Id.  Thus, the court explained, at the time of trial, the tenant “was entitled to possession of the premises under the operative lease.”  Id.

Joseph is simply inapplicable here, as Garden City did not execute a new lease with Nash after suing to evict him.  Nothing in Joseph or in the language of the lease itself supports the argument that Garden City must prove exactly when Nash engaged in criminal activity during his Garden City residency to support lease termination.  And to hold that Garden City cannot terminate a lease based on criminal behavior it just discovered that may have occurred under a prior lease would be nonsensical, as such a holding would simply reward those who manage to conceal inappropriate or unlawful behavior until the end of a renewable lease term.  We decline to read Joseph so broadly.   

Because there is legally sufficient evidence to support the trial court’s conclusion that Nash breached his lease, we overrule Nash’s first issue. 

B. Notice of Violation of Lease

In his second issue, Nash complains that Garden City’s termination notice failed to state the grounds for eviction with sufficient specificity to enable Nash to prepare a defense.  Specifically, Nash argues that the notice’s failure to allege specific dates, times, places and person’s involved renders the notice fatally defective.  If we conclude the notice was deficient, Nash further urges us to overrule prior precedent subjecting such failure to give adequate notice to harm analysis or, alternatively, to conclude in this case that Nash was harmed.  Garden City responds that its notice was sufficiently detailed and that, in any event, Nash waived this complaint by not raising in the trial court.  We agree with Garden City.    

1.     Applicable law

Title 24, section 247.4 of the Code of Federal Regulations sets forth certain lease termination notice requirements applicable to Section 8 housing. Relevant here: “The landlord’s determination to terminate the tenancy shall be in writing and shall . . . state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense.” 24 C.F.R. § 247.4(a)(2).  Unless new grounds for eviction come to light after the termination notice is sent, the landlord is limited to reliance only “on grounds which were set forth in the termination notice” in any judicial eviction proceeding.  24 C.F.R. § 247.6(b). 

2.     Discussion       

Garden City’s notice of lease termination states (1) the individual allegedly engaged in wrongdoing (Nash), (2) the objectionable behavior (hiring residents for sexual favors), (3) when and how Garden City became aware of the objectionable behavior (the meeting with Nash on September 16, 2009), and (4) the names of the witnesses to Nash’s admission forming the basis of the eviction. This notice provided much more detail than the notices found insufficient in the two cases Nash claims are analogous.  Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 391(Tex. App.—Houston [1st Dist.] 2006, no pet.) (notice stated only “[o]wner desired possession” and “[u]n-desirable tenant behavior”); Moon v. Spring Creek Apartments, 11 S.W.3d 427, 433 (Tex. App.—Texarkana 2000, no pet.) (notice stated that tenant’s 3-year old grandson “endanger[ed the] welfare of  other tenants”).  Nash does not articulate in his brief how Garden City’s notice was insufficient to apprise him of the necessary facts to prepare his defense.  And, while Nash’s attorney successfully objected to the introduction of evidence about wrongdoing outside the scope of the termination letter at trial,[2] Nash never brought to the trial court’s attention any objection about the actual form of the notice, or that the notice was too vague to adequately put him on notice of the ground under which the court found lease termination proper, i.e., Nash’s hiring other residents to engage in sexual activity.  Tex. R. App. P. 33.1.  We overrule Nash’s second issue.

CONCLUSION

        We affirm the trial court’s judgment. 

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

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[1]           White is identified elsewhere in the record as “Sonia Ross.”

[2]           Nash’s attorney successfully argued to exclude evidence related to allegations about Nash possessing child pornography in his apartment, and testimony elaborating on the attempts at luring children into his apartment, because these grounds were not included in Garden City’s termination notice.