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Veal v. Cbrei/USA Hollister Dst

Court of Appeals of Texas, Fourteenth District

September 14, 2017

SAMMY VEAL, Appellant
v.
CBREI/USA HOLLISTER DST D/B/A WYNHAVEN AT HOLLISTER LP AND RIVERSTONE RESIDENTAL SC, LLC D/B/A RIVERSTONE RESIDENTAL GROUP, LLC, Appellees

         On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2012-21471

          Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          John Donovan Justice

         Appellant Sammy Veal sued his former apartment complex, appellees CBREI/USA Hollister DST d/b/a Wynhaven at Hollister LP and Riverstone Residential SC, LLC d/b/a Riverstone Residential Group, LLC (collectively "Wynhaven"), for breach of contract, Texas Deceptive Trade Practices Act ("DTPA"), unlawful lockout, wrongful eviction, wrongful interruption of utilities, and retaliation.[1] The trial court granted summary judgment in Wynhaven's favor, dismissing all of Veal's claims. In eight issues, [2] Veal argues that the trial court erred by excluding evidence and granting Wynhaven's motions for summary judgment. We affirm.

         I. Factual and procedural background

         Veal was a residential tenant at the Wynhaven at Hollister apartments from July 24, 2010, through August 25, 2011, as set forth by the terms of a lease agreement. The lease agreement further provided that either party give at least 60 days' written notice of termination or intent to move out.

Lease Term. The initial term of the Lease begins on 24th day of July (month), 2010 (year), and ends at midnight the 25th day of August (month), 201[1] (year). This Lease will automatically renew month-to-month unless either party gives at least 60 days' written notice of termination or intent to move out as required by Par. 37.

         During the time Veal was a tenant, he complained about the condition of the apartment, specifically the carpet and the blinds. Additionally, during his tenancy, Veal was issued several notices of lease violations for offenses such as excessive noise and having a prohibited animal (snake). He also was issued notices to vacate for non-payment/late-payment of rent, utilities, or other sums.

         Veal's apartment was burglarized on June 24, 2011. After the burglary, Veal inquired with Wynhaven personnel about repairs to his door, and was told that after police finished their report the door would be repaired. Veal was notified in writing by Wynhaven on July 1, 2011, that it would not renew his lease, which expired on August 25, 2011. This gave Veal a 55-day advance notice of non-renewal.

         On August 25, 2011, Veal had not yet vacated his unit. Wynhaven gave him until the close of business on August 26, 2011, to vacate the premises. At the close of business day on August 26, 2011, Veal still had not moved out. Veal was informed he either had to vacate the apartment or pay additional rent. Veal did not pay additional rent and removed the rest of his items into the hallway of the building. After the items were removed, the locks to the apartment were changed.

         On April 21, 2012, Veal filed suit against Wynhaven, alleging causes of action for breach of contract, DTPA, negligence, fraud, unlawful lockout, wrongful eviction, and retaliation. Veal amended his petition, adding a claim for wrongful interruption of utilities. Wynhaven served Veal with a request for disclosure in May 2012.

         Over the next few years, the parties propounded discovery as well as filed dispositive motions, including Wynhaven's no-evidence motion for partial summary judgment[3] and a traditional motion for final summary judgment.[4] In September 2014, the case was called to trial and Veal filed his third motion for continuance. Wynhaven opposed the continuance and objected under Rule 193.6 to any evidence of damages from Veal because Veal had failed to timely disclose his damages. See Tex. R. Civ. P. 193.6. The court granted the motion for continuance to give Veal the opportunity to amend his disclosures to set forth his claimed damages.

         A year later, on September 20, 2015, Veal served Wynhaven with supplemental disclosures regarding damages. During pretrial conference conducted on October 20 and 21, Wynhaven objected to any evidence of damages from Veal because his supplemental disclosures were untimely.[5]

         On October 23, 2015, the case was called to trial. After setting aside multiple prior orders, the trial court reconsidered the entire record and granted Wynhaven's motion to exclude evidence of damages as well as an affidavit Veal filed in response to a summary judgment. The trial court granted Wynhaven's motions for summary judgment, ordered Veal take nothing on all claims, and awarded Wynhaven its court costs. The trial court memorialized its actions in "uncharacteristic detail" in a five-page single-spaced final judgment. The trial court denied Veal's motion for a new trial; this appeal timely followed.

         II. ...


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