Byler v. Garcia

• Decision Date: 16 January 1985
• Docket Number: No. 14082,14082
• Citation: 685 S.W.2d 116
• Parties: H.C. BYLER, Appellant, v. Gerardo Sandoval GARCIA, Appellee.
• Court: Texas Court of Appeals

Page 116

685 S.W.2d 116

H.C. BYLER, Appellant, v. Gerardo Sandoval GARCIA, Appellee.

No. 14082.

Court of Appeals of Texas Austin.

Jan. 16, 1985.

Rehearing Denied Feb. 13, 1985.

John C. Augustine, Fitzgerald, Meissner, Augustine & Alexander, Austin, for appellant.

Philip C. Friday, Jr., Austin, for appellee.

Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.

ON MOTION FOR REHEARING

GAMMAGE, Justice.

This Court's opinion and judgment filed on December 19, 1984, are withdrawn; the following opinion and judgment of even date are filed in their place.

Appellant, H.C. Byler, appeals from the judgment of the trial court awarding appellee Gerardo Sandoval Garcia, $3778.06 in actual and exemplary damages, (including trebled damages of $625 for retention of security deposit), in addition to $3555 for attorney's fees in a cause of action for wrongful eviction.

We will modify the judgment of the trial court and, as modified, affirm it.

Gerardo Sandoval Garcia, a citizen of Guatemala, entered into a short-term lease with H.C. Byler on or about November 3, 1981, for the rental of apartment number 304 at 3104 Duval, Austin. Garcia gave Byler a check for $370. The payment consisted of $195 for rent, $100 for deposit, and $75 as consideration for a special agreement between the parties allowing Garcia to have a short-term, 45-day lease, rather than the standard six-month lease.

Thereafter, Garcia approached Byler in an effort to extend the short-term lease. Byler informed Garcia that the apartment had already been relet. Subsequently, Garcia and Byler entered into another lease for apartment number 101. Garcia's personal effects were transferred to his new apartment by members of Byler's staff on December 15, 1981.

After the commencement of the second lease, Garcia informed Byler that he would be going to Guatemala during his Christmas vacation and furnished Byler a check for the January rent which was subsequently deposited by Byler. Garcia had not received any notification of alleged lease violations up to that time concerning either lease.

Garcia departed for Guatemala around the 18th of December and returned on January 27th to discover apartment 101 had been relet and his belongings removed. Unable to reach Byler, Garcia stayed in a motel that night. The following day, Garcia met with Byler and demanded both his apartment and the return of his personal effects. Byler refused to restore apartment 101 to Garcia and, instead, proffered another apartment in the neighboring Maui Kai complex, which Byler did not own. At this time, Byler purported to pay the deposit and the February rent for the Maui Kai apartment. Garcia's belongings, which had been placed in garbage bags, were delivered to the apartment in Maui Kai.

On February 1, 1982, Garcia received a series of written notices from Byler demanding $210 for the February rental on the Maui Kai apartment, payment for various violations under his first lease, and Garcia's return of the keys to apartment 101. According to Byler, Garcia violated his first lease agreement by the following: an unauthorized overnight guest of the opposite sex in the apartment on two separate occasions, a late rental payment, failure to clean the first apartment, and failure to timely vacate the first apartment. Garcia had already delivered the keys to the occupants of apartment 101, when his belongings were taken out of storage and transferred to the apartment at Maui Kai.

Thereafter, Byler filed a forcible entry and detainer suit in the justice court to evict Garcia from the Maui Kai apartment. The justice court ultimately dismissed this suit and ordered a take nothing judgment against Byler's claim for damages. Garcia then nonsuited his cross-action for damages in the justice court and filed suit for wrongful eviction in the county court at law. The court entered judgment for Garcia and awarded actual and exemplary damages, in addition to attorney's fees.

Byler complains by points of error one, two and three that the trial court erred in its denial of his motion for new trial, the award of exemplary damages, and the award of attorney's fees, arguing there was insufficient evidence to support a finding that Byler's conduct was willful and reckless under either 1973 Tex.Gen.Laws, ch. 441, art. 5236c, § 2, art. 5236d, §§ 5, 6, 7, at 1226, or a common law theory of wrongful eviction.

According to Byler, his action in reletting apartment 101 during Garcia's absence was prompted by a belief that the apartment was abandoned and, therefore, such an act could not constitute willful conduct.

The word "willful," when used in a penal statute, means "... without reasonable ground to believe the act lawful." This definition does not require knowledge that the act was unlawful. Causey v. Catlett, 605 S.W.2d 719 (Tex.Civ.App.1980, no writ). Art. 5236 provides, in pertinent part:

Art. 5236c

... Willful Exclusion by Landlord

Sec. 2. It shall be unlawful for a landlord or his agent to willfully exclude a tenant from the tenant's premises in any manner except by judicial process. Willful exclusion shall mean preventing the tenant from entering into the premises with intent to deprive the tenant of such entry. Provided, however, a landlord or his agent shall not be prevented from removing the contents of the premises when the tenant has abandoned the premises....

Art. 5236d

Sec. 5. It shall be unlawful for any landlord or his agent to seize any property exempt under Section 2 above, under any circumstances. It shall be unlawful for a landlord or his agent to seize any property not exempt under Section 2 above, unless pursuant to the terms of a written rental agreement between the landlord and the tenant.

Sec. 6. Nothing herein shall prevent a landlord or his agent from removing the contents of the premises when the tenant has abandoned the premises.

Sec. 7. Upon willful violation of this Article by the landlord or his agent, the tenant may recover one month's rent, plus actual damages, plus reasonable attorney's fees, less any delinquent rentals or other sums for which the tenant is liable.

Our review of the record discloses statements by Byler which, without more, are sufficient to support a finding that his conduct was willful. The record, however, does contain more. Interlaced with Byler's claim that he believed the apartment to be abandoned were statements by Byler's agent and his attorney that there was apparently someone using the apartment during Garcia's supposed absence. These statements clearly negate the assertion of abandonment.

Byler further asserts that his actions in obtaining an apartment for Garcia and his payment of the February rent and deposit for the Maui Kai Apartment evidenced his good will. However, the record also shows that Byler delivered a rent due notice to Garcia for $210 of the February rent and then filed a forcible entry and detainer suit against Garcia for his failure to pay this sum in addition to amounts claimed for various lease violations that Byler asserted Garcia had...