Hamaker v. Newman

Decision Date10 March 2022
Docket Number02-19-00405-CV
PartiesKeith Hamaker, Appellant v. Tierrah Newman, Appellee
CourtCourt of Appeals of Texas

Before Sudderth, C.J.; Kerr and Walker, JJ.

MEMORANDUM OPINION

Brian Walker, Justice.

In this landlord-tenant dispute, pro se Appellant Keith Hamaker appeals the $47, 520 judgment entered against him after a jury found that he breached his lease agreement with tenant Tierrah Newman, withheld her security deposit in bad faith failed to timely repair the property, and constructively evicted Newman. We overrule the majority of Hamaker's thirteen issues on appeal for the reasons we discuss below.

However because the full amount of damages awarded to Newman for Hamaker's constructive eviction is not supported by factually sufficient evidence, we suggest a remittitur of $4 903.37. If, within 15 days of the date of this opinion Newman files in this court a remittitur of $4, 903.37, [1] then our subsequent judgment will reform the trial court's judgment in accordance with the remittitur and, as reformed, affirm that judgment. See Tex. R. App. P. 46.3, 46.5. If no such remittitur is timely filed, we must reverse the trial court's judgment and remand the case to the trial court for a new trial on the issues of liability and damages. See Tex. R. App. P. 44.1(b); Willis v. Donnelly, 199 S.W.3d 262, 276 & n.27 (Tex. 2006). Further, in order to prevent a double recovery, we order the judgment modified to delete the award of damages for breach of contract.

I. BACKGROUND
FACTS
A. Newman Entered into a Lease with Hamaker

In October 2016, Newman and her mother sought to move closer to Newman's Plano workplace when she saw an online ad for a "luxury duplex" at 4043 St. Christopher Lane, one of 24 properties on the street owned by Hamaker. She contacted the phone number listed in the ad, spoke to Hamaker's wife (Donna), and arranged a viewing of the property on or about October 14 or 16, 2016.[2] Newman's and Hamaker's recollections of her initial visit differed. Newman recalled that there were several other potential tenants viewing the property and that the windows and doors were open and the air conditioning was off despite the warm weather outside. Hamaker denied the presence of "a large group of people" and that the windows or doors were open. The duplex was occupied at the time; according to Newman, there were "a lot of boxes and furniture . . . in odd places" as if someone was in the midst of moving out.

Newman was interested in the property and inquired about leasing it. Hamaker asserted that Newman asked to videoconference her mother and they told her she would have to come back later that day. Hamaker and Donna testified that Newman did return and Hamaker described Newman as "express[ing] delightful comments" while showing her mother the home virtually.[3] According to Newman, Hamaker told her that he would have a "cleaning team" clean the home; that he would be "repainting, recarpeting, [and] redoing trim"; and that the appliances worked. They signed a one-year lease that day with a move-in date of November 15, monthly rent of $1, 550 per month, and a $1, 850 security deposit, which Newman paid.

B. Newman was Disappointed by the Condition of the Rental

According to Hamaker, he and Donna had been trimming trees at a nearby property on November 6 when Newman and her mother approached them, stated that they had been in the home, and complained that the home needed to be cleaned, damaged doorways needed to be repaired, and the carpet needed to be replaced.[4]Hamaker testified that he had agreed and promised to get the house cleaned, the carpet replaced, and the doorways repaired. He also claimed that he and his wife spent "26 man hours" cleaning the home, that the carpet was replaced, and that the doorways were repaired.

But according to Newman, when she arrived on November 16 to move in, the home was "just disgusting" and "filthy," and it had not been cleaned. There was urine surrounding the master-bathroom toilet, hair in the shower, a nonfunctioning dishwasher, a "disgusting" oven, wallpaper ripped and peeling off of the walls, mold, and a musty smell. She notified Hamaker and, according to Newman, he "went irate, zero to 100, irritated, yelling at [her], calling [her] a liar," and he hung up on her repeatedly. She photographed various issues with the property and sent those to Hamaker that night via text message.[5] She described for the jury additional problems including missing blinds, exposed wires, tiles coming off the wall, wallpaper peeling off the wall, ripped crown molding, a plant growing into the house through a window frame, and an area where light was coming in through a crack in the wall.

Hamaker's recollection of Newman's move-in was different. He told the jury that Newman called multiple times on her first and second day, but that her complaints changed over the course of the calls. He remembered her first call as limited to, "I need a new oven; it's old," and her subsequent calls as requesting a new oven, a new dishwasher, new flooring, a complete repainting of the walls and ceiling, and new wallpaper. Hamaker's testimony at trial painted Newman as trying to take advantage of him and find a reason to break the lease. He explained away her concerns-in his view, the dishwasher had just a couple of missing rollers on the top rack but was still functional, the wiring she complained about in the oven was just a temperature probe, the linoleum floors were just "nick[ed]," the "exposed wiring" in a bathroom exhaust fan was not exposed, and Newman had pulled back the wallpaper to make it look worse.

On November 19, Newman and her mother discovered that the dining room carpet was wet. Newman contacted Hamaker, who told her to pull up the carpet and put fans out and that he would have his maintenance man, Gary, come look at it. Gary came the next day and told Newman that he had been instructed to only investigate the leak and not to fix anything else. When he cut a hole in the wall to try to find the source of the leak, he "just fell back . . . and shook his head" and said, "[S]hit, [Hamaker]." Newman testified that the inside of the wall was full of mold and described it as "dark green and black [in] color" and "wet and damp." At trial, Hamaker dismissed any and all mold concerns.

When Newman asked Gary if he could fix the dishwasher while he was there, he "looked at it, slammed it, and said I'm not fixing this piece of - - [Hamaker] needs to replace this." But when Gary also noticed that turning on the sink caused water to "gush out" beneath it, leaving standing water, he felt he had an obligation to fix the sink, so he did. He also fixed leaks in all of the bathroom sinks. He did not fix the stove, so Newman felt it was unsafe to use. Later, Newman found mold in several other areas of the home, including the air conditioning vents. Photos of the suspected mold were admitted into evidence and shown to the jury.

C. Newman Moved Out and Sought a Resolution

After Gary's visit to the home and the discovery of the mold, Newman and her mother decided to go to a hotel that night, and they applied to lease an apartment. Newman retained a company to test for mold and once she had the results, she and her mother determined that they could not live in the house and decided to move to the apartment.

On November 23, Newman sent Hamaker a letter informing him of her intent to terminate the lease effective December 1 due to his breach of the lease agreement. The letter also memorialized Newman's verbal and text-message communications from November 16 and 17 to Hamaker informing him that the dishwasher leaked and its top rack was broken; that there was a leak under the kitchen sink; that the garbage disposal did not work; that the oven was not in "good operating order," and she had been advised not to use it; that the condition of the home was unsanitary; that wallpaper was peeling; and that tile was "pulling up off of the ground." She included a new request that a smoke detector and garage-door opener be repaired. Finally, she reported in the letter that the home had been tested for mold, that "[t]here is a high concentration level of [m]old in the rental property and we have been recommended to leave the property due to [h]ealth and [s]afety issues," and that they had been unable to stay in the home since November 22 due to the mold issue.

Hamaker testified that he received the letter on November 25 and described it as Newman's first written request for repairs and her first mention of mold concerns.

According to Newman, Hamaker called and told her that he would sue her if she broke the lease. Hamaker drove to Dallas a few days later, on November 29, and, according to his testimony, he did not find any mold but "[a]s a precaution" sprayed areas with bleach, let them dry, and then sprayed them with a paint sealant. He also averred that he replaced some fittings on the hot water heater in the garage to repair a leak, that he installed a new smoke alarm (he claimed the wires on the existing smoke alarm had been cut), and that he cleaned three air-conditioning registers. He admitted that some of the wallpaper was peeled up but implied that Newman had done that; he also claimed that "mold is common underneath wallpaper" and that wallpaper should "never" be peeled back to expose the mold underneath.

On November 30, the pair encountered each other when Newman came to the home with movers to remove the rest of their belongings. According to Newman, Hamaker again threatened to sue her and seemed "[s]trangely confident" when he told her "it was going to be a shame when ...

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