Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY TRIAL COURT NO.
GABRIEL, SUDDERTH, and PITTMAN, JJ.
MEMORANDUM OPINION  ON
T. PITTMAN, JUSTICE
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.
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.
Facts and Procedural Background
sued Brand in the justice court for equitable relief and for
violations of the property code. 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
. In December 2012, after the only toilet in
her leased residence began backing up, Brand refused to make
. 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
. 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.
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.
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.
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.").
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.
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
Standard of Review
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).
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).
Failure to Return the Security Deposit
Brand's first issue,  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 ...