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Brand v. Degrate-Greer

Court of Appeals of Texas, Second District, Fort Worth

May 4, 2017






         Appellant James Brand moved for rehearing on this panel's February 9, 2017 memorandum opinion and judgment. See Tex. R. App. P. 49.1. We deny the motion but withdraw our prior memorandum opinion and judgment and substitute the following.

         This case involves a landlord-tenant dispute. In eight issues, Brand appeals the judgment rendered by the trial court in the suit brought against him by his former tenant, Appellee Shaunte Degrate-Greer (Degrate-Greer), for breach of contract and for violations of the property code. Because we hold that Brand was legally entitled to withhold $129 of Degrate-Greer's security deposit, we modify the judgment to omit the portion of the damages award based on that withholding. We affirm the judgment as modified.

         I. Facts and Procedural Background

         Degrate-Greer sued Brand in the justice court for equitable relief and for violations of the property code.[2] She included the following allegations in her petition.

. Under a lease agreement with Brand, she leased the entirety of the property at a specific address in Fort Worth.
. In December 2012, after the only toilet in her leased residence began backing up, Brand refused to make repairs.
. Brand leased a separate structure that was located in the back of the property to a third party, violating both her lease and Fort Worth's code of ordinances. . Because of this second lease and the fact that the two structures were on the same set of utility meters, Degrate-Greer was forced to pay for the third party's use of water and electricity. Additionally, she was denied access to the other structure and much of the property.
. Brand refused to make any further repairs to the property.
. Degrate-Greer and her husband John opted to move out of the property, but despite her providing Brand with notice of her new mailing address in writing, Brand failed to return the security deposit.

         Based on these allegations, Degrate-Greer asserted causes of action against Brand for: (1) violations of the property code; (2) breach of contract; (3) breach of a landlord's implied warranty of habitability; and (4) retaliation. In response, Brand filed an answer that asserted affirmative defenses and counterclaims for breach of contract.

         The justice court rendered a judgment awarding Degrate-Greer $1, 700 plus $1, 500 in attorney's fees. Brand appealed that judgment to the county court.

         The matter was referred to mediation by the county court, but it was canceled at Brand's request. The case then proceeded to a de novo bench trial. The county court, now the trial court, signed a judgment awarding Degrate-Greer $400 for the return of her security deposit, $1, 300 for Brand's bad-faith failure to return the deposit, $1, 437 for breach of contract arising from Brand's renting the second structure to a third party, and $13, 500 in attorney's fees. See Tex. Prop. Code Ann. § 92.109(a) (West 2014) ("A landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit.").

         Brand filed a motion for new trial that was overruled by operation of law. He also filed a request for findings of fact and conclusions of law, as well as a notice of late filed findings and conclusions. The trial court did not file findings and conclusions. Brand then filed this appeal.

         On December 6, 2016, we abated this case for the trial court to make findings and conclusions. The trial court did so, and on January 5, 2017, we reinstated this case on this court's docket.

         II. Analysis

         A. Standard of Review

         We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

         When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

         B. Failure to Return the Security Deposit

         In Brand's first issue, [3] he argues that the evidence was legally and factually insufficient to support the award of $400 for the return of Degrate-Greer's security deposit. In his second issue, he challenges the award of $1, 300 for a bad-faith failure to return the security deposit, arguing that the evidence ...

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