Holmes v. Canlen Management Corp., 6544
| Decision Date | 18 August 1976 |
| Docket Number | No. 6544,6544 |
| Citation | 542 S.W.2d 199 |
| Parties | Odell S. HOLMES, Jr., Appellant, v. CANLEN MANAGEMENT CORPORATION, d/b/a Canlen House Apartments, Appellee. |
| Court | Texas Court of Appeals |
Odell S. Holmes, Jr., El Paso, for appellant.
Francis S. Ainsa, El Paso, for appellee.
This is an appeal from the granting of summary judgment. The judgment was entered in favor of the defendant-landlord where a tenant had filed suit under Article 5236e V.A.T.C.S. to recover an alleged security deposit made at the time of the lease, a statutory penalty, trebled damages and attorney's fees. We affirm.
The plaintiff, Odell Holmes, pleaded that he became a tenant of the defendant under the terms of a written lease which was attached and made a part of his petition; that he later vacated the premises after giving the required notice as provided by the lease; that after having given proper written demand for the return of his security deposit in the amount of $40.00, it had neither been returned nor properly accounted for. Under the terms of the statute, he then prayed judgment against the landlord for the $40.00 deposit, penalty of $100.00, plus treble the amount of the deposit wrongfully withheld, or a total of $260.00 plus reasonable attorney's fees.
The written lease was on a month to month basis at $165.00 per month. The lease provided that in addition to said rent the tenant agreed to pay 'a non-refundable painting and clearning fee in the sum of $40.00.' The defendant filed its answer which included a special exception to the petition because the lease did not disclose that any security deposit was required of the plaintiff in any manner at all; that the provision regarding the non-refundable painting and cleaning fee did not refer to a security deposit; and that the pleading did not disclose any basis for the plaintiff's cause of action. No action was taken on the special exception.
The defendant then filed its motion for summary judgment on the specific grounds that (a) the claimed refund of $40.00 was identified under the lease agreement as 'a non-refundable painting and cleaning fee in the sum of $40.00,' (b) pleaintiff had pleaded a claim to a refund of said sum as a 'security deposit' without in any manner showing how said non-refundable fee constituted a 'security deposit,' and (c) that the pleadings and the interrogatories on file plainly disclosed as a matter of law that the $40.00 claimed by the plaintiff was paid by him as additional consideration for the lease. Plaintiff's opposing affidavit admitted that he paid the $40.00 under the lease as 'a non-refundable painting and cleaning fee', but that, even despite its designation, it had as its primary function the securing of full or partial performance of the rental agreement for the rental premises leased by plaintiff.
The plaintiff's two points on appeal are that the trial Court erred in granting the motion since there was a question of fact presented that the fee was a security deposit, and that as a matter of law the non-refundable painting and cleaning fee was a security deposit as defined by law.
The pertinent provisions of Article 5236e are as follows:
'Definitions
'Section 1. * * *
'(6) 'Normal wear and tear' means that deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or members of his household, or his invitees or guests.'
The statute provides that the security deposits must be refunded by the landlord to the tenant within 30 days after the tenant surrenders the premises; that the landlord must keep accurate records of all security...
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De Stefano v. Apts. Downtown, Inc.
...325, 245 N.W.2d 737, 741 (1976) (finding a nonrefundable cleaning fee not part of the rental deposit); Holmes v. Canlen Mgmt. Corp., 542 S.W.2d 199, 201–02 (Tex.Civ.App.1976). Additionally, the statute clearly authorizes the deduction of carpet-cleaning costs from rental deposits if necessa......
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Billstrom v. Memorial Medical Center, 1467
...but cannot be used against appellant to conclusively establish a summary judgment in favor of Memorial. See e. g., Holmes v. Canlen Management Corp., 542 S.W.2d 199 (Tex.Civ.App. El Paso 1976, no ...
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Gooden v. Tips
...proof. Therefore this court takes as true every allegation of the pleadings against which the motion is directed. Holmes v. Canlen Management Corp., 542 S.W.2d 199, 201 (Tex.Civ.App.--El Paso 1976, no writ); Wood Truck Leasing v. American Auto Ins. Co., 526 S.W.2d 223, 224-5 (Tex.Civ.App.--......
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Malek v. Miller Brewing Co.
...writ dism'd w.o.j.); Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App.--San Antonio 1963, writ ref'd n.r.e.); see also Holmes v. Canlen Management Corp., 542 S.W.2d 199 (Tex.Civ.App.--El Paso 1976, no writ). Furthermore, Malek, as the non-movant, must be given the benefit of every reasonable......