Shannon L. Johnson and Javier G. Gonzalez v. Waters at Elm Creek LLC
2013 Tex. App. LEXIS 12796
| Tex. App. | 2013Background
- Lease of apartment; security deposit $663; possession surrendered Oct 5, 2009
- Water s at Elm Creek mailed $136.11 refund and itemization dated Oct 23, 2009; postmark Nov 11, 2009
- Tenant suit filed Nov 20, 2009 alleging improper accounting and bad faith
- Trial court denied three motions for summary judgment; later granted sanctions against Johnson for third motion
- Second sanctions order (May 8, 2012) awarded $1,500; mandamus proceeding; trial resulted in take-nothing judgment for Waters; appellate reversal on sanctions only
- Trial court found no bad faith and that deductions were reasonable; awarded Waters $18,623.16 in attorney’s fees; written findings of fact and conclusions of law supporting reasonableness of charges
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of first hybrid motion for summary judgment is reviewable | Johnson | Waters | Not reviewable on appeal; issue withdrawn |
| Whether Waters Elm Creek proved deductions were reasonable and no bad faith | Johnson | Waters | Evidence legally and factually sufficient to support reasonableness and absence of bad faith |
| Whether sanctions against Johnson based on mandamus petition were proper | Johnson | Waters | Sanctions reversed; trial court lacked jurisdiction to sanction for mandamus filing |
| Whether second sanctions order under Rule 13 and 10.002 CPCR is proper | Johnson | Waters | Reversed; sanctions denied |
| Whether the take-nothing judgment for Waters and fee award were proper | Johnson | Waters | Affirmed as to take-nothing; sanctions reversal does not affect fee ruling |
Key Cases Cited
- Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex. 1966) (precludes reviewing denial of summary judgment on appeal when case tried on merits)
- Williams v. Colthurst, 253 S.W.3d 353 (Tex. App.—Eastland 2008) (denial of hybrid summary judgment not reviewable on appeal)
- Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) (legal sufficiency standard for issues where burden of proof differs)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (concept of standard for reviewing evidence)
- Pulley v. Milberger, 198 S.W.3d 418 (Tex. App.—Dallas 2006) (presumption of bad faith when security deposit not timely returned; burden to rebut presumption)
- Flying J Inc. v. Meda, Inc., 373 S.W.3d 680 (Tex. App.—San Antonio 2012) (standard for reviewing factual sufficiency where burden of proof rests on opposing party)
- In re Lerma, 144 S.W.3d 21 (Tex. App.—El Paso 2004) (mandamus petition; adequate remedy by appeal may negate sanctions)