Michaux v. Koebig

• Decision Date: 10 August 1977
• Docket Number: No. 12572,12572
• Citation: 555 S.W.2d 171
• Parties: Kirk MICHAUX et al., d/b/a Treehouse Apartments, Appellants, v. Ann KOEBIG et al., Appellees.
• Court: Texas Court of Appeals

Page 171

555 S.W.2d 171

Kirk MICHAUX et al., d/b/a Treehouse Apartments, Appellants, v. Ann KOEBIG et al., Appellees.

No. 12572.

Court of Civil Appeals of Texas, Austin.

Aug. 10, 1977.

Rehearing Denied Sept. 7, 1977.

Duane F. Emmert, McGinnis, Lochridge & Kilgore, Austin, for appellants.

Andrew Gary, Morgan & Gary, San Marcos, for appellees.

O'QUINN, Justice.

Appellees, who were plaintiffs below, brought this lawsuit in January of 1975 as former tenants of the Treehouse Apartments in San Marcos, complaining that in August of 1974 they were wrongfully excluded from their apartment by an implied threat of criminal complaint and that their security deposits, in the sum of $90, were wrongfully withheld by the landlords. ¹

The tenants sought judgment for $237 representing one month's rent, plus $300 as triple the security deposits and $100 statutory penalty, together with damages in the sum of $250 plus $750 as attorney's fees, a total of about $1,640.

The cause was tried before the district court without a jury in June of 1976, after which the court rendered judgment for the tenants in the sum of $1,326, consisting of $90 for security deposits, $270 as a sum treble the deposits, $100 as statutory penalty, $116 for unused rents, and $750 as attorney's fees. The landlords have appealed and bring seven points of error under which they deny wrongful eviction of the tenants, refute the claims of willful exclusion or threat of criminal prosecution, and deny willful withholding of the security deposits.

We will reverse the judgment of the trial court and render judgment that the tenants take nothing by their suit and direct appellants to return the amount of the tenants' deposits, in the sum of $90, which the landlords tendered without success after learning the forwarding address of the tenants.

The trial court filed no findings of fact and conclusions of law and none was requested. We examine the record under the established rule that an appellate court must affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); Longhorn Flying Club, Inc. v. Dragoo, 464 S.W.2d 189, 191-2 (Tex.Civ.App. Austin 1971, writ ref'd n.r.e.); In Interest of Stuart, 544 S.W.2d 821, 824 (Tex.Civ.App. Tyler 1976, writ ref'd n.r.e.); Poteet v. Winter Garden Production Credit Ass'n, 546 S.W.2d 650, 652 (Tex.Civ.App. El Paso 1977, writ ref'd n.r.e.).

The facts giving rise to this action are that in late summer of 1974 the appellee tenants were asked to vacate their apartment. The following note from the manager of the apartment complex was placed on appellees' apartment door: "Because of disorderly conduct in and on a public place, according to Penal Code 4201 of the Revised Civil (sic ) Statute of Texas, you are asked to vacate the premises within three (3) days."

The request to vacate apparently was the result of the tenants' failure repeatedly to abide by the landlords' parking policy and regulations, as to assigned parking spaces for tenants only, and the result of a verbal argument in the parking area between one of the appellees and the manager of the apartment complex, growing out of parking violations by the tenants.

In response to the written request, the tenants vacated the apartment without protest and in accord with notice from the apartment manager. The vacated apartment was left in an appropriately proper condition to warrant return of the security deposits of $90, which at the time of suit some four months later, had not been returned as a security deposit.

The tenants left no official written notice of their forwarding address, as required by statute. It is the contention of appellee tenants that the printed addresses on their rental checks were sufficient written notice of the forwarding addresses for refund of the security deposit to be a landlord obligation.

The applicable statute is Tex.Rev.Civ.Stat.Ann. art. 5236e, sec. 2(a), sec. 4(a), sec. 4(c), sec. 6(a) (1973).

Section 2(a) reads:

"Security deposits must be refunded by the landlord to the tenant within 30 days after the tenant surrenders the premises. A tenant shall give advance notice of surrender as may be required by the rental agreement. However, advance notice may not be a condition for refund unless the requirement of advance notice is underlined or printed in conspicuous, bold print in the rental agreement." (Emphasis supplied)

Section 4(a) reads:

"A landlord who in bad faith retains a security deposit in violation of this Act is liable for $100 plus treble the amount of that portion of the deposit which was wrongfully withheld from the tenant, and shall be liable for reasonable attorneys fees in a lawsuit to recover the security deposit."

Section 4(c) reads:

"In any court action brought by a tenant under this Act, the landlord bears the burden of proving that his retention of the security deposit or any portion thereof was reasonable. In this court action the landlord is not liable for the penalty, treble damages, or attorneys fees referred to in Subsections (a) and (b) of this section unless the landlord is found to have acted in bad faith. Failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith." (Emphasis supplied)

Section 6(a) reads:

"The tenant shall furnish the landlord with a written copy of the tenant's forwarding address for purposes of security deposit refunding. A tenant's right to security deposit refund and description of damages and charges is never forfeited for mere failure to furnish a forwarding address to the landlord. Notwithstanding any other provision of this Act, a landlord is not obligated to return the security deposit or furnish a written description of damages and charges until the tenant has furnished the forwarding address." (Emphasis supplied)

The statute makes clear that a written copy of the tenant's forwarding address is to be furnished to the landlord "for purposes of security deposit refunding." Until this obligation is met by the tenant, the landlord is under no obligation to refund the security deposit.

Since Article 5236e provides for award of attorney's fees, it is penal in nature. Such statutory provisions allowing for collection of attorney's fees are in derogation of the common law and must be subject to strict construction. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962); Knebel v. Capital National Bank in Austin, 518 S.W.2d 795 (Tex.1974); King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App. Waco 1976, writ ref'd n.r.e.).

The printed address on a check given for rent is not sufficient compliance to discharge the tenant's initial obligation as set out in the statute. This obligation must be met before the obligation shifts to the landlord. A rental check is tendered the landlord for the purpose of paying rent, not to provide a written copy of a forwarding address "for purposes of security deposit refunding."

In addition, it is obvious that rental checks are not retained by landlords as permanent business records but instead are deposited in a bank for payment, and eventually are returned to the tenants at the conclusion of the negotiable instrument process.

The tenants did not discharge their obligation. The landlords were not, therefore, under the statutory obligation to return the security deposit. The landlords met their burden of proof as required by statute indicating that the retention of the security deposit was reasonable.

The landlords, being under no obligation to return the security deposit until furnished by the tenants with a written copy of the forwarding address, did not retain the security deposit in bad faith. The landlords had no liability to appellees for the penalty, treble damages, or attorney's fees awarded under Tex.Rev.Civ.Stat.Ann. art. 5236e, sec. 4(a) (1973) in the judgment rendered by the trial court.

We agree with appellants' contentions that as landlords they did not act in bad faith in withholding the security deposit; that since the evidence indicated the tenants failed to discharge their statutory obligation, the landlord appellants rebutted the statutory presumption of bad faith; and that since the landlord appellants were not in violation of the security deposits provisions of Article 5236e, assessment of statutory treble damages and penalty was error.

Appellants raise additional points under which they claim that the tenants were neither willfully excluded nor threatened with criminal prosecution. Appellees alleged each of these contentions in the original trial petition.

The "willful exclusion of tenant" is described in Tex.Rev.Civ.Stat.Ann. art. 5236c, sec. 2 (1973):

"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 or from changing door locks when the tenant's rentals are in fact delinquent in whole or in part. When such door lock is changed under such circumstances, a written notice shall be left on the tenant's front door describing where the new key may be obtained at any hour and describing the name of the individual who will provide the tenant with such key; and such key shall be provided regardless of whether the tenant pays any delinquent rentals." (Emphasis supplied)

If there had been a willful exclusion of the tenants as detailed in Article 5236c, section 4 of the statute provides:

"Upon violation of this Article by the landlord or his agent, the tenant may...