Pulley v. Milberger
| Decision Date | 24 July 2006 |
| Docket Number | No. 05-05-00891-CV.,05-05-00891-CV. |
| Citation | 198 S.W.3d 418 |
| Parties | Ralph and Rubye PULLEY, Appellants, v. Keith MILBERGER, Appellee. |
| Court | Texas Court of Appeals |
Robert H. Osburn, Dallas, for Appellant.
W. Mark Montgomery, George Parker & Associates, McKinney, for Appellee.
Before Justices RICHTER, LANG, and MAZZANT.
Ralph and Rubye Pulley appeal the trial court's take-nothing judgment against them in their lawsuit to recover their security deposit and in favor of their landlord, Keith Milberger, on his counterclaim for damages incurred in repairing the property. The Pulleys raise seven issues on appeal.
In issues two through four, the Pulleys argue the trial court erred when it rendered a take-nothing judgment against them and a judgment in favor of Milberger for damages because Milberger failed to plead: (1) the absence of bad faith to refund their security deposit or give them a written itemization of the charges for repairs; (2) the charges he offset against the security deposit were reasonable as required by the lease and section 92.109 of the Texas Property Code; and (3) he had a reasonable excuse for his failure to refund the security deposit or give them a written itemization of the charges for repairs.
In issues one and five through seven, the Pulleys argue the trial court erred when it rendered a take-nothing judgment against them and a judgment in favor of Milberger for damages because there was no evidence or, alternatively, insufficient evidence to: (1) establish Milberger gave them a written itemization of the charges for repairs as required by sections 92.104 and 92.109 of the Texas Property Code; (2) rebut the presumption that Milberger acted in bad faith when he failed to refund the security deposit or to give them a written itemization of the charges for repairs; (3) establish the charges Milberger offset against the security deposit were reasonable as required by the lease and section 92.109 of the Texas Property Code; (4) establish Milberger had a reasonable excuse for his failure to refund the security deposit or to give them a written itemization of the charges for repairs; and (5) support the award of $2,000 in damages to Milberger, in excess of the security deposit.
We conclude Milberger was not required to plead as affirmative defenses the absence of bad faith, that the charges offset against the security deposit were reasonable, or that he had a reasonable excuse for failing to give the Pulleys an itemized list of the deductions. Also, we conclude there was sufficient evidence to support the trial court's take-nothing judgment against the Pulleys and judgment in favor of Milberger on his counterclaim awarding him $2,000 in damages. We decide all issues against the Pulleys. The trial court's judgment is affirmed.
Milberger is a petroleum engineer and the president of an oil and gas engineering firm, and his occupation requires him to travel extensively. Before 1997, Milberger leased his 2,400 square foot house located at 6643 Garlinghouse Lane, Dallas, Texas to three different tenants. Milberger did not have any serious problems regarding the security deposits with his prior tenants.
On April 9, 1997, Milberger leased his house to Mr. Pulley, an attorney, and his wife. The lease agreement was on a form promulgated by the Greater Dallas Association of Realtors, Inc. Specific terms in the lease, relevant to this case, included: (1) a $3,700 security deposit; (2) Milberger may deduct from the security deposit reasonable charges for cleaning, deodorizing, damages, and repairs to the property or its contents beyond normal wear and tear as well as the cost of repairs for which the Pulleys are responsible; (3) the Pulleys were required to reimburse Milberger for any loss, property damage, or the cost of repairs or services to the property caused by the Pulleys' negligence or improper use of the property; and (4) Milberger was required to maintain the yard and the Pulleys were required to water the yard at reasonable and appropriate times.
Before the Pulleys began residing at the house, Milberger and his listing agent, Stacy Hamilton, walked through the house. Neither Milberger nor Hamilton observed any damage to the built-in china cabinet or the foundation. Also, four to five months before the Pulleys began residing at the house, Milberger had twenty-year, wear-dated Berber carpet installed. At the time the lease was signed, Milberger programmed the sprinkler system to water the yard pursuant to his discussions with the Pulleys and told Mr. Pulley that the system should remain turned on. During the time the Pulleys leased the house, Milberger paid for the maintenance and care of the yard.
The initial lease period was one year. After the first year, the Pulleys renewed their lease on a month-to-month basis. The Pulleys resided in the house for a total of six years. At one point during the Pulleys' tenancy, Mr. Pulley told Milberger he was having financial difficulties and asked Milberger to set aside half of the rent for four to six months. Milberger agreed and the Pulleys caught up on their rent payments four or five months afterward. The Pulleys were late in their rent payments thirteen times, but Milberger did not charge them any late fees as allowed by the lease. During the Pulleys' tenancy, Milberger did not increase the rent. On July 17, 2003, the Pulleys sent Milberger a letter notifying him that they would be vacating the house on August 18, 2003, and advising him that the sprinkler system was not working properly and needed repair.
Milberger asked Hamilton to re-lease the house when the Pulleys gave their notice. When Hamilton went to the house, she observed that the grass in the front yard was dead and the lawn was mainly soil. Milberger inspected the sprinkler system and found that it worked properly, but it had been turned off. Milberger had the front yard resodded and told the Pulleys the lawn had to be watered or the sod would die. The next morning, Milberger checked the sprinkler system and found that it had been turned off. Milberger turned the sprinkler system back on and wrapped a tie around it so it could not be turned off. However, when he checked the sprinkler system that evening, the tie wrap had been removed and, again, the sprinkler system had been turned off. Meanwhile, Hamilton tried to show the house to prospective lessees. However, there were problems with people being able to get in to see the house and, once inside, people would turn around and walk out because of the urine smell in the master bedroom. As a result, the house was taken off the market.
The Pulleys surrendered the premises on August 18, 2003, and, at the house, they left a handwritten note addressed to Milberger advising him of their forwarding address. Within two days of the Pulleys' surrender of the premises, Milberger inspected the house. A couple of days later, he inspected the house a second time with Hamilton. In addition to the issues with the lawn, they observed that the foundation was cracked, the built-in china cabinet had three scratches approximately 6 inches long and 1/4 inch deep, the garage floor had a deep oil stain approximately 3 feet wide and 7 feet long, the living room and master bedroom carpets were badly stained, the master bathroom wall was stained and the toilet was encrusted with stains, and the master bedroom and bathroom had the strong odor of urine. Milberger took photographs of the damage and obtained estimates on the cost of repairs.
On August 22, 2003, Milberger sent the Pulleys a letter describing the damage to the house. Also, the letter stated, "As a result of the damages to the property that exceed what is considered reasonable wear and tear the resultant cost of repairs has exceed[ed] the [security] deposit." The Pulleys did not respond to his letter. As a result, Milberger telephoned the Pulleys once a week for three weeks, but no one took his calls and his messages were not returned. Then, on October 2, 2003, after thirty days had passed, the Pulleys sent Milberger a demand letter for the $3,700 security deposit and advised him that they had engaged an attorney who would begin the collection process if their security deposit was not returned by October 15, 2003. The next day, Milberger responded to the Pulleys' demand letter. In Milberger's response, he invited the Pulleys to meet with him to review the documented damages, photographs taken the day after they vacated the house, and the costs incurred to repair the damage. Also, Milberger advised the Pulleys again that the damage was beyond normal wear and tear and the costs of the repairs exceeded the amount of their security deposit. The Pulleys did not respond to Milberger's invitation to review his documentation.
Milberger had the damage to the house repaired. When the carpet was pulled up, the smell was described as nauseating, the stains had permeated through to the back of the carpet and the padding, and the padding was crusty from urine residue. As a result, the carpet and padding had to be scraped up with a shovel and replaced. In the master bathroom, the drywall beside the toilet was cleaned with bleach, but the urine stains could not be removed so the drywall had to be replaced. Also, the toilet had to be removed because it was so heavily encrusted with urine stains. A month later, the bathroom had to be "redone" because the urine odor remained. The scratches on the counter top of the built-in china cabinet could not be repaired, so it was replaced. The oil on the garage floor was raked with a spatula and cleaned with acid. In addition, the foundation was repaired. It took approximately three months to repair the damage so the house could be shown to prospective lessees. Also, Milberger obtained the utility records for the house during the Pulleys' possession as well...
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