Perry v. Wichita Falls Hous. Auth.

• Decision Date: 12 May 2022
• Docket Number: 02-21-00163-CV
• Citation: 646 S.W.3d 908
• Parties: Elizabeth PERRY, Appellant v. WICHITA FALLS HOUSING AUTHORITY, Appellee
• Court: Texas Court of Appeals

646 S.W.3d 908

Elizabeth PERRY, Appellant

v.WICHITA FALLS HOUSING AUTHORITY, Appellee

No. 02-21-00163-CV

Court of Appeals of Texas, Fort Worth.

Delivered: May 12, 2022

ATTORNEY FOR APPELLANT: MATTHEW RYAN JONES, LEGAL AID OF NORTH WEST TEXAS, WICHITA FALLS, TEXAS.

ATTORNEY FOR APPELLEE: REGINALD R. WILSON, WICHITA FALLS, TEXAS.

Before Kerr, Wallach, and Walker, JJ.

Opinion by Justice Kerr

In this forcible-detainer case, Elizabeth Perry appeals from the trial court's judgment awarding possession of an apartment to the Wichita Falls Housing Authority (WFHA). In two issues, Perry argues that the trial court erred by awarding possession to WFHA because (1) WFHA failed to provide her with the requisite statutory notice to vacate under the Texas Property Code and (2) WFHA failed to give her notice of her rights under the Violence Against Women Act as required by federal law. Because WFHA failed to give Perry the statutorily required notice to vacate under Texas law, we reverse the trial court's judgment.

I. Background

WFHA is a federally supported public-housing agency (PHA) that provides housing assistance to low-income individuals and is governed by the United States Housing Act of 1937 and Department of Housing and Urban Development (HUD) regulations. See Heinert v. Wichita Falls Hous. Auth. , 441 S.W.3d 810, 816 (Tex. App.—Amarillo 2014, no pet.) (stating that as a federally subsidized housing authority, "WFHA is governed by the United States Housing Act of 1937 and its attendant regulations"). "Among other things, federal law dictates much of the content of public[-]housing leases, requiring the inclusion of various provisions and prohibiting other provisions." Id. ; see 24 C.F.R. § 966.4 (2016) ("Lease Requirements").

In March 2020, Perry entered into a "dwelling lease" with WFHA. Consistent with HUD regulations, the lease provided that WFHA could "terminate or refuse to renew this Lease for serious or repeated violations of Resident's obligations under any section of this Lease or for other good cause." See 24 C.F.R. § 966.4(l )(2)(i), (iii). If WFHA terminated the lease, the lease required WFHA to give Perry written notice of lease termination that included the specific grounds for termination and informed Perry of her rights (1) "to make such reply as [she] may wish"; (2) to examine management's documents "directly relevant to the termination or eviction"; and (3) to request a hearing in accordance with the current grievance procedure, which was "posted in the Management Office and incorporated herein by reference." See id. § 966.4(l )(3)(ii). The lease also provided that "[n]otice to vacate may be combined with and run concurrently with notice of lease termination." See id. § 966.4(l )(3)(iii).

The lease further provided that WFHA would annually re-examine Perry's circumstances to determine if there had been any changes that would "affect rent, eligibility[,] and appropriateness of apartment size." The lease required Perry to attend a re-examination interview and to provide WFHA with "such information and certifications as may be necessary" for it to conduct its review. The lease stated that failure to attend the interview "on the designated date and time" was "considered a serious violation of [the] lease and grounds for termination of [the] lease."

On July 29, 2020, WFHA sent Perry a written notice informing her that her re-examination interview was scheduled for September 3, 2020, and listing the documents that she was required to provide to WFHA at the interview. When Perry failed to appear for her interview, WFHA notified her in writing that her interview was rescheduled for September 10, 2020. Perry did not attend the second interview.

That same day—September 10, 2020—WFHA notified Perry in writing that because she had breached the lease by failing to attend the two re-examination appointments, the lease would be terminated on October 31, 2020, and she must vacate the premises by that date. In conformity with the lease's terms and HUD regulations, the lease-termination notice stated the specific grounds for termination¹ and informed Perry of her rights to reply to the notice, to examine WFHA's documents directly relevant to her termination and eviction, and to request a hearing under the grievance procedure. See id. § 966.4(l )(3)(ii). The notice explained that if Perry did not vacate the premises by the October 31 deadline, WFHA would file a forcible-detainer action against her. Also on September 10, Perry signed (1) an "Eviction Delivery Certification" indicating that she had received the lease-termination notice and (2) a "Delivery Receipt of VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT (VAWA)."

Perry did not reply to the lease-termination notice or avail herself of the grievance procedure. She failed to vacate the property, and on December 9, 2020, WFHA sued her for forcible detainer. The justice court awarded possession of the property to WFHA, and Perry appealed to district court for a trial de novo.²

During the trial de novo, Donna Lewis, an employee in WFHA's Occupancy Department, testified that she had mailed the lease-termination notice to Perry and that the termination notice was attached to Perry's door. Through Lewis, WFHA introduced into evidence (1) the lease; (2) the notifications of the two lease re-examination appointments; (3) the lease-termination notice; (4) the signed eviction-delivery certification;³ and (5) the signed VAWA delivery receipt. When Perry's attorney asked Lewis on cross-examination what the VAWA delivery receipt was "supposed to indicate the receipt of," Lewis responded, "When I serve the eviction, I also add the VAWA paperwork with the eviction ... [a]nd I also mail it to her." Lewis went on to explain what the VAWA paperwork included:

[Lewis]: Okay. The form that I sent to them was attachment 3, Certification of Domestic Violence, Sexual Assault or Stalking.

This is what I sent to them when I sent the eviction. I send one to their door and I also sent it through the mail.

Q. (By [Perry's counsel]) And how many forms is that?

A. It's two forms. It's backwards and -- both sides.

Perry did not testify.

The trial court found for WFHA and signed a possession judgment in WFHA's favor that also awarded WFHA attorney's fees and court costs. Perry superseded the judgment and remains in possession of the apartment.

At Perry's request, the trial court filed findings of fact and conclusions of law. See Tex. R. Civ. P. 296, 297. Perry has appealed, raising two notice-related issues challenging the trial court's legal conclusions that "[a]ll legal notices and prerequisites to granting an eviction have been met" and that "[t]he evidence presented is sufficient to establish that [WFHA] is entitled to a judgment for possession of the premises, costs of court, and attorney's fees."

II. Standard of Review

We review the trial court's legal conclusions de novo. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002). We may review conclusions of law to determine their correctness based upon the facts, but we will not reverse because of an erroneous conclusion if the trial court rendered the proper judgment. City of Austin v. Whittington , 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software , 83 S.W.3d at 794 ); H.E.B., L.L.C. v. Ardinger , 369 S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no pet.). That is, because a trial court's conclusions of law are not binding on us, we will not reverse a trial court's judgment based on an incorrect conclusion of law when the controlling findings of fact support the judgment on a correct legal theory. Wise Elec. Coop., Inc. v. Am. Hat Co. , 476 S.W.3d 671, 679 (Tex. App.—Fort Worth 2015, no pet.).

III. Forcible Detainer

In her first issue, Perry asserts that the trial court should not have granted WFHA judgment on its forcible-detainer claim because WFHA failed to comply with the Texas Property Code's notice-to-vacate requirements.

Because forcible detainer is a statutory cause of action under the Texas Property Code, a landlord must strictly comply with its requirements. Geters v. Baytown Hous. Auth. , 430 S.W.3d 578, 584 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ; Kennedy v. Andover Place Apartments , 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). See generally Tex. Prop. Code Ann. §§ 24.001 –.011. Under Texas Property Code Section 24.002, a tenant commits a forcible detainer by refusing to surrender possession of real property after the landlord has lawfully terminated the tenant's right to possession. See Tex. Prop. Code Ann. § 24.002(a) ; Kennedy , 203 S.W.3d at 497. Section 24.002 requires a landlord to make a written demand for possession and to comply with Section 24.005's notice-to-vacate requirements. Tex. Prop. Code Ann. § 24.002(b). Proper notice is an element of a forcible-detainer action. Fashakin v. Fed. Home Loan Mortg. Corp. , No. 14-11-01079-CV, 2013 WL 1316694, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2013, pet. denied) (mem. op.).

Here, Perry asserts that WFHA failed to comply with Section 24.005's notice-to-vacate requirements. When, as here, the occupant is a tenant under a written lease, the landlord must give a defaulting tenant at least three days’ written notice to vacate before filing a forcible-detainer suit, unless the parties have contracted in writing for a larger or smaller notice period. Tex. Prop. Code Ann. § 24.005(a).⁴ But "[i]f the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired." Id. § 24.005(e).

Perry's lease gave her the right to reply to a lease-termination notice and the right to request a hearing in accordance with the grievance procedure. Although neither the lease nor the lease-termination notice specified the period in which Perry was required to respond to the notice or to...