Shannon L. JOHNSON and Javier G. Gonzalez, Appellants v. WATERS AT ELM CREEK L.L.C., Appellee.
No. 04-12-00779-CV.
Court of Appeals of Texas, San Antonio.
Oct. 16, 2013.
421 S.W.3d 42
Robert David Fritsche, San Antonio, TX, for Appellees.
Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.
OPINION
Opinion by: CATHERINE STONE, Chief Justice.
This appeal arises from a dispute over the return of a security deposit. After a bench trial, the trial court signed a take-nothing judgment in favor of Waters at Elm Creek, L.L.C., awarding it $18,623.16 in attorneys’ fees. On appeal, Shannon Johnson and Javier G. Gonzalez contend the trial court erred in denying their first hybrid motion for summary judgment and
BACKGROUND
Johnson and Gonzalez signed a lease for an apartment in an apartment complex owned by Waters at Elm Creek. In accordance with the lease, Johnson and Gonzalez paid a $663.00 security deposit. The lease required Waters at Elm Creek to mail the “security deposit refund (less lawful deductions) and an itemized accounting of any deductions no later than 30 days” after Johnson and Gonzalez surrendered possession of the apartment. Johnson and Gonzalez surrendered possession of the apartment on October 5, 2009.
Johnson subsequently received a check in the amount of $136.11 in the mail with an itemized accounting of the deductions made by Waters at Elm Creek. The accounting was dated October 23, 2009; however, the check was dated November 10, 2009. The postmark on the envelope in which the check and accounting were mailed was dated November 11, 2009.
On November 20, 2009, Johnson and Gonzalez filed a pro se original petition against Waters at Elm Creek, alleging Waters at Elm Creek had failed to timely and properly “render an accounting” as a result of its bad faith and had forfeited any right to withhold any portion of the deposit. Johnson and Gonzalez subsequently filed three motions for summary judgment, all of which were denied by the trial court. In its response to the third motion for summary judgment, Waters at Elm Creek requested sanctions, asserting the third motion for summary judgment was groundless and brought in bad faith. The trial court granted the motion for sanctions and ordered Johnson to pay Waters at Elm Creek $500 for the attorney‘s fees it incurred in responding to the third motion for summary judgment. The deadline for paying the sanctions was April 13, 2012.
On April 16, 2012, Johnson filed a petition for writ of mandamus and motion for temporary relief with this court challenging the sanctions order. Having determined that Johnson had an adequate remedy by appeal, this court issued an order denying the petition on April 17, 2012. Johnson received notice that her petition was denied on April 20, 2012. Upon receiving the notice, Johnson attempted to tender a check in payment of the sanctions to the attorney for Waters at Elm Creek. After the attorney rejected the check as untimely, Johnson deposited the check into the registry of the trial court.
On April 30, 2012, Waters at Elm Creek filed a second motion for sanctions, asserting, “The filing of the Mandamus Proceedings is the type of vexatious litigation that is frivolous, groundless and brought for the purposes of harassment.” On May 1, 2012, an attorney filed an appearance of counsel on behalf of Johnson and a motion to set the cause on the non-jury docket. An order was signed on May 1, 2012, setting the cause for trial on June 28, 2012.
On May 8, 2012, a hearing was held on Waters at Elm Creek‘s second motion for sanctions. At the conclusion of the hearing, the trial court signed an order granting the motion and ordering Johnson to pay $1,500, which the trial court determined were the attorneys’ fees “reasonable
On May 16, 2012, the trial was reset to July 20, 2012. After hearing the evidence, the trial court signed a take-nothing judgment in favor of Waters at Elm Creek and awarded it $18,623.16 in attorney‘s fees. The trial court entered findings of fact and conclusions of law, expressly finding that Waters at Elm Creek “had no intention to deprive [Johnson and Gonzalez] of a lawfully due security deposit refund” and “did not retain [the] security deposit in dishonest disregard of their rights.” The trial court further found that all amounts retained by Waters at Elm Creek from the security deposit were reasonable. Finally, the trial court found that Waters at Elm Creek did not retain the security deposit in bad faith or fail to provide a written description and itemized list of damages and charges in bad faith.
DENIAL OF SUMMARY JUDGMENT
In their first issue, Johnson and Gonzalez assert the trial court erred in denying their first hybrid motion for summary judgment. Where a motion for summary judgment is denied by the trial court and the case is subsequently tried on its merits, the order denying the motion for summary judgment cannot be reviewed on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966); Williams v. Colthurst, 253 S.W.3d 353, 359-60 (Tex. App.-Eastland 2008, no pet.). At oral argument, Johnson and Gonzalez withdrew this issue in view of the applicable law.
SUFFICIENCY OF THE EVIDENCE
In their second issue, Johnson and Gonzalez challenge the sufficiency of the evidence to support the trial court‘s ruling. Specifically, Johnson and Gonzalez contend Waters at Elm Creek did not present sufficient evidence to overcome the presumption that it acted in bad faith or to establish the reasonableness of the deductions it made from the security deposit.
A. Section 92.109
B. Standard of Review
In this case, Johnson and Gonzalez brought suit seeking to impose liability on Waters at Elm Creek under
C. Analysis
The undisputed evidence at trial established that Waters at Elm Creek failed to return the security deposit to Johnson and Gonzalez and failed to provide a written description and itemization of deductions on or before the 30th day after the date Johnson and Gonzalez surrendered possession. Johnson and Gonzalez surrendered possession on October 5, 2009, and the envelope containing the itemization of charges and the balance of the security deposit was postmarked November 11, 2009. Accordingly, Waters at Elm Creek is presumed to have acted in bad faith.
A landlord acts in bad faith if the landlord acts in dishonest disregard of the tenant‘s rights or intends to deprive the tenant of a lawfully due refund. Id. Good faith is established by showing “honesty in fact in the conduct or transaction concerned.” Id. “Evidence that a landlord had reason to believe he was entitled to retain a security deposit to recover reasonable damages is sufficient to rebut the presumption of bad faith created by the Texas Property Code.” Id. “Other evidence may include: (1) the landlord is an amateur lessor because the residence is his only rental property; (2) the landlord had no knowledge of the requirement to submit an itemized list of all deductions from the security deposit; (3) extensive damage was done to the residence; (4) the landlord attempted to do some of the repairs himself to save money; or (5) the landlord had a reasonable excuse for the delay, e.g., he was on vacation.” Id. at 428-29.
If the landlord is able to defeat the presumption of bad faith with regard to the retention of a security deposit, the landlord also is required to prove that his retention of any portion of the security deposit was reasonable. Id. at 429. “A landlord‘s retention of the security deposit may be reasonable if: (1) the tenant is legally liable under the lease or as a result of breaching the lease; (2) the damages did not exist before the tenant leased the premises; or (3) the damages or charges are equal to or in excess of the security deposit or the amount deducted from the security deposit.” Id. If the lease imposes
In this case, the trial court as the trier of fact heard conflicting evidence from Johnson and Lori Delayo, the property manager for Waters at Elm Creek.2 With regard to Johnson receiving the balance of the deposit approximately ten days late, Delayo testified that the check initially was mailed to the address Johnson listed on her notice of intent to move out. The check was then returned to the corporate office of Waters at Elm Creek. When Johnson called Delayo inquiring about the check, she provided Delayo with a new address to which the check was then resent. We hold that Delayo‘s testimony is sufficient evidence to rebut the presumption of bad faith.
With regard to the reasonableness of the deductions Waters at Elm Creek made from the security deposit, Johnson testified that the carpet in the apartment was worn and the paint on the wall was “splotchy” when she moved into the apartment. Johnson noted these conditions on the Inventory and Condition Form which she completed and turned in after moving into the apartment. A copy of the form was introduced into evidence. Although Johnson admitted that she kept a dog in the apartment for approximately one month of her one-year lease term, she testified that the dog was kept in a crate when she was not at home. Johnson testified that Delayo commented that the apartment was spotless during the walk-through they conducted when Johnson vacated the apartment.
Delayo testified that she smelled a strong odor of dog urine immediately upon opening the door during the walk-through. She stated that the carpet was saturated in urine, requiring the carpet and the pad to be replaced and the concrete under the carpet to be sealed to mask the smell. Delayo also testified that Johnson had attempted to re-paint a wall that had been painted a different color during her tenancy; however, large spots were visible through the paint. Delayo stated that she informed Johnson that the wall would need to be repainted.
The following deductions were made from Johnson‘s security deposit: (1) $25 light clean; (2) $367.56 carpet replacement with pad; (3) $35.00 pet treatment; (4) $85.58 full paint due to wrong color on walls; (5) $7.00 replaced 1 drip pan; and (6) $7.75 final water bill. The invoice listing the deductions noted that Waters at Elm Creek was actually invoiced $171.16 for the paint, but Johnson was only charged one-half that amount, noting that the paint on the walls did not match the current color used in the apartment requiring the apartment to be painted twice. In addition to the amounts listed in the invoice, Delayo testified to the actual expenses incurred by Waters at Elm Creek. Delayo stated that Waters at Elm Creek was invoiced $55 for the cleaning, but she charged Johnson only $25 because she determined that Johnson had attempted to clean the apartment. In addition, Delayo testified that the full amount of the carpet
Although the evidence was conflicting, it was within the trial court‘s province to assess the witnesses’ credibility and determine the weight to be given the testimony. After reviewing the record, we hold the evidence presented was legally and factually sufficient to support the trial court‘s finding that the itemized repairs were necessary and the associated costs were reasonable.
SANCTIONS
Although not asserted by Johnson as a separate issue in her brief, the amicus brief filed in this case raises a challenge to the trial court‘s second sanctions order. As previously noted, the parties were advised before oral argument to be prepared to address this issue. In the second sanctions order, the trial court imposed sanctions at least in part based on Johnson‘s filing of an original proceeding in this court challenging the first sanctions order. The trial court‘s order cites
Although the trial court‘s order relies on Rule 13 and Section 10.002 as the basis for imposing sanctions,
Johnson‘s mandamus petition was denied by this court because we determined an adequate remedy by appeal existed. “As a general rule, the denial of mandamus relief due to the existence of an adequate remedy by appeal does not automatically establish that the mandamus petition is so clearly groundless as to war-
In light of
CONCLUSION
The trial court‘s order granting Waters at Elm Creek‘s second motion for sanctions is reversed, and judgment is rendered denying the motion. The remainder of the trial court‘s judgment is affirmed.