Brand v. Degrate-Greer

• Decision Date: 09 February 2017
• Docket Number: NO. 02-15-00397-CV,02-15-00397-CV
• Parties: JAMES BRAND APPELLANT v. SHAUNTE DEGRATE-GREER APPELLEE
• Court: Texas Court of Appeals

JAMES BRAND APPELLANT v. SHAUNTE DEGRATE-GREER APPELLEE

NO. 02-15-00397-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

February 9, 2017

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

TRIAL COURT NO. 2014-001486-3

MEMORANDUM OPINION¹

This case involves a landlord-tenant dispute. In eight issues, Appellant James Brand appeals the judgment rendered by the trial court in the suit brought against him by his former tenant, Appellee Shaunte Degrate-Greer (Degrate-Greer), for breach of contract and for violations of the property code. Because we hold that Brand was legally entitled to withhold $129 of Degrate-Greer'ssecurity deposit, we modify the judgment to omit the portion of the damages award based on that withholding. We affirm the judgment as modified.

I. Facts and Procedural Background

Degrate-Greer sued Brand in the justice court for equitable relief and for violations of the property code.² She included the following allegations in her petition.

• Under a lease agreement with Brand, she leased the entirety of the property at a specific address in Fort Worth.

• In December 2012, after the only toilet in her leased residence began backing up, Brand refused to make repairs.

• Brand leased a separate structure that was located in the back of the property to a third party, violating both her lease and Fort Worth's code of ordinances.

• Because of this second lease and the fact that the two structures were on the same set of utility meters, Degrate-Greer was forced to pay for the third party's use of water and electricity. Additionally, she was denied access to the other structure and much of the property.

• Brand refused to make any further repairs to the property.

• Degrate-Greer and her husband John opted to move out of the property, but despite her providing Brand with notice of her new mailing address in writing, Brand failed to return the security deposit.

Based on these allegations, Degrate-Greer asserted causes of action against Brand for: (1) violations of the property code; (2) breach of contract; (3) breach of a landlord's implied warranty of habitability; and (4) retaliation. In response, Brand filed an answer that asserted affirmative defenses and counterclaims for breach of contract.

The justice court rendered a judgment awarding Degrate-Greer $1,700 plus $1,500 in attorney's fees. Brand appealed that judgment to the county court.

The matter was referred to mediation by the county court, but it was canceled at Brand's request. The case then proceeded to a de novo bench trial. The county court, now the trial court, signed a judgment awarding Degrate-Greer $400 for the return of her security deposit, $1,300 for Brand's bad-faith failure to return the deposit, $1,437 for breach of contract arising from Brand's renting the second structure to a third party, and $13,500 in attorney's fees. See Tex. Prop. Code Ann. § 92.109(a) (West 2014) ("A landlord who in bad faith retains a security deposit in violation of this subchapter 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.").

Brand filed a motion for new trial that was overruled by operation of law. He also filed a request for findings of fact and conclusions of law, as well as a notice of late filed findings and conclusions. The trial court did not file findings and conclusions. Brand then filed this appeal.

On December 6, 2016, we abated this case for the trial court to make findings and conclusions. The trial court did so, and on January 5, 2017, we reinstated this case on this court's docket.

II. Analysis

A. Standard of Review

We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence 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 mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

B. Failure to Return the Security Deposit

In Brand's first issue,³ he argues that the evidence was legally and factually insufficient to support the award of $400 for the return of Degrate-Greer's security deposit. In his second issue, he challenges the award of $1,300 for a bad-faith failure to return the security deposit, arguing that theevidence was legally and factually insufficient to support the award. We consider these issues together.

1. Property Code Requirements for Refunding Security Deposits

Under the property code, a landlord "shall refund a security deposit to the tenant on or before the 30th day after the date the tenant surrenders the premises," provided that the tenant has given the landlord a written statement of their forwarding address for purposes of refunding the security deposit. Tex. Prop. Code Ann. §§ 92.103, 92.107 (West 2014). With limited exceptions, if the landlord retains any part of the security deposit, the landlord must give the tenant a written description and an itemized list of all deductions along with the balance of the deposit. Id. § 92.104 (West 2014). Additionally, the lease in this case required Brand to give Degrate-Greer "an itemized written statement of the reasons for, and the dollar amount of, any of the security deposit retained by [Brand], along with a check for any deposit balance" within thirty days after Degrate-Greer had vacated the premises, returned her keys, and provided Brand with a forwarding address.

Further, "[a] landlord who in bad faith retains a security deposit in violation of this subchapter 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." Id. § 92.109. "A landlord who fails either to return a security deposit or to provide a written description and itemization of deductions on or before the 30th day after the date the tenantsurrenders possession is presumed to have acted in bad faith." Id. "In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable." Id.

It is undisputed that Brand, who has been a landlord for approximately forty-five years, never returned the security deposit or mailed Degrate-Greer a written description and itemization of deductions. At trial, Degrate-Greer testified that she mailed notice to Brand of her forwarding address and that when she received no reply, she sent a notice by certified mail, which was signed for by Brand's wife. She mailed this notice on February 25, 2013. Degrate-Greer further testified that when she again received no response from Brand, she sent another certified notice requesting the return of her deposit, which was signed for by Brand on April 12, 2013. The trial court found this evidence to be credible, and, accordingly, held that Brand was presumed to have acted in bad faith in retaining the security deposit. Hancock v. Hancock, No. 2-06-00376-CV, 2008 WL 2930586, at *5 (Tex. App.—Fort Worth July 31, 2008, no pet.) (mem. op.) ("As the factfinder, the trial court was the sole judge of the credibility of witnesses and the weight to be given to their testimony and could resolve any inconsistencies in the evidence.") (citations omitted). It therefore became Brand's burden to rebut that presumption.

2. Brand Did Not Prove that Degrate-Greer Caused Property Damage

Brand argues that he was entitled to keep the deposit, and there was accordingly no bad faith in his failure to return the deposit, because the costs to repair damages to the property that were caused by Degrate-Greer exceeded the deposit. However, in their trial testimony, Degrate-Greer and her husband disputed Brand's testimony that they damaged the property, and the trial court believed their testimony over Brand's. Id. As stated herein, we will not substitute our judgment for that of the trial court on credibility determinations.

3. Brand Did Not Prove that Degrate-Greer Held Over

Brand argues that he was entitled to keep the security deposit because, by failing to return the keys to the property when she moved out, Degrate-Greer held over into the next month. In direct contrast, Degrate-Greer testified that she and her husband left the keys in the barbecue pit on the property, that they called Brand the day they moved out and told him where the keys could be found, and that Brand had his own key to the property. Again, the trial court believed this testimony over Brand's conflicting testimony.

Brand also argues that Degrate-Greer held over by not providing him with the appropriate thirty days' notice that she was moving out as required...