577 S.W.3d 608
Tex. App.2019Background
- Goldberg B’Nai B’rith Towers (Goldberg) operates a HUD-subsidized high-rise; Maurice Sloane is an elderly, disabled tenant who signed a one-year lease that automatically renewed monthly and incorporated House Rules limiting threatening, abusive, or disruptive conduct.
- Goldberg issued a June 27, 2016 termination notice citing multiple incidents by Sloane (threatening emails/comments including references to a "Bengal tiger," a comment to staff about shooting, racial/ethnic epithets, and loud threats to a visitor) and asserting material noncompliance/criminal activity under the lease and HUD rules.
- Sloane and Goldberg executed a signed Cancellation of Apartment Lease Contract agreeing an August 1 move-out; Sloane later rescinded and remained in possession. Goldberg filed a forcible detainer; justice court awarded possession, fees and rent; Sloane appealed to county court de novo.
- At trial the jury found Sloane failed to comply with the lease and the cancellation agreement, awarded possession to Goldberg, $1,869 unpaid rent, and $46,961.69 attorneys’ fees (plus conditional appellate fees). The trial court entered judgment accordingly.
- On appeal Sloane challenged (1) refusal to submit his requested jury question/instruction (prior material breach and immateriality), (2) sufficiency of evidence for attorneys’ fees, and (3) sufficiency of evidence for unpaid rent.
Issues
| Issue | Plaintiff's Argument (Goldberg) | Defendant's Argument (Sloane) | Held |
|---|---|---|---|
| Whether trial court erred by refusing to submit Sloane’s requested jury question/instruction on prior material breach and common-law materiality factors | Requested instructions were unnecessary because lease and HUD regulations control termination; lease defined material noncompliance and that definition should govern | The common-law materiality factors and prior material breach defense should have been submitted to excuse Sloane’s noncompliance | No error: court refused charge properly; lease definition controls materiality for HUD-subsidized landlord, and prior-breach defense was inapplicable because Sloane treated the lease as continuing |
| Whether attorney’s fees award was supported by legally sufficient evidence | Trial evidence (counsel testimony of hourly rate and lump-sum estimate) sufficed and jury may award reasonable fees | Evidence was legally insufficient—no contemporaneous allocation of hours by task, invoices only showed a small portion of claimed fees, and lodestar proof was deficient | Reversed and remanded: fees award lacked adequate lodestar evidence; remand for redetermination of reasonable fees |
| Whether $1,869 back rent was supported by legally and factually sufficient evidence | Goldberg presented Davis’s testimony seeking $1,869 for rent from August to trial | Sloane testified he paid rent in advance and Goldberg offered no direct testimony that rent remained unpaid | Reversed and rendered: evidence insufficient to show rent remained unpaid; judgment that Goldberg take nothing on back rent |
Key Cases Cited
- Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013) (forcible-detainer is speedy means to determine possession)
- Marshall v. Housing Authority of San Antonio, 198 S.W.3d 782 (Tex. 2006) (same; right to possession is focus in eviction)
- Long Trusts v. Griffin, 222 S.W.3d 412 (Tex. 2006) (treating contract as continuing bars reliance on prior material breach to excuse performance)
- El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) (attorney-fee lodestar requires specific proof of hours and reasonableness)
- City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) (lodestar as starting point for fee awards)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (common-law materiality factors)
- Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) (fees must be shown reasonable and necessary)
- Hong v. Havey, 551 S.W.3d 875 (Tex. App.—Houston [14th Dist.] 2018) (insufficient fee proof where hours not allocated)