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Sloane v. Goldberg B'Nai B'Rith Towers

Court of Appeals of Texas, Fourteenth District

May 7, 2019


          On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1082565

          Panel consists of Justices Christopher, Zimmerer, and Hassan.


          Jerry Zimmerer Justice

         This is an appeal from a judgment in a forcible detainer suit. Appellee Goldberg B'Nai B'Rith Towers (Goldberg) is the owner of a high-rise apartment building that operates under a federal low-income housing program. Appellant Maurice Sloane, II is a tenant in the building. Goldberg filed the forcible-detainer action seeking Sloane's eviction based on several alleged non-rent breaches of the lease agreement. Both the justice court and, on appeal, the county civil court at law, ordered Sloane evicted from the apartment. The county court also awarded attorneys' fees and back rent to Goldberg. Sloane appeals the judgment in three issues, arguing jury charge error, lack of sufficient evidence to support the award of attorney's fees, and lack of sufficient evidence to support the award of back rent. We overrule Sloane's first issue but sustain his second and third issues. We therefore affirm in part, reverse and render in part, and reverse and remand in part, the trial court's judgment.


         Goldberg operates the residential high-rise under a program established through the Secretary of Housing and Urban Development (HUD). Under that program, Goldberg agreed to limit occupancy of the high-rise to elderly or handicapped families and individuals as defined in Section 202 of the Housing Act of 1959 and applicable federal regulations. Sloane, who is elderly and handicapped, signed a one-year lease for apartment 4407 of the high-rise on June 15, 2007, and receives monthly rental assistance from HUD.

         The lease incorporated House Rules that governed the relationship of the parties and proscribed certain behaviors. Under the House Rules, tenants agree that they will refrain from conduct that "would conflict with the rights of other residents to peaceful enjoyment of the premises." Conduct considered disturbing under the House Rules includes "bullying of any sort" as well as "abusive or foul language." The House Rules also state that Goldberg may terminate the lease of any resident "who is or has been engaged in criminal activity that could reasonably indicate a present threat to the health, safety or welfare of others."

         Pursuant to the terms of the lease and applicable federal regulations for HUD properties, the lease automatically renews for successive terms of one month each "unless terminated or modified as provided" in the lease. Section 9 of the lease allows Goldberg to terminate for material noncompliance with the lease, material failure to carry out obligations under any state landlord or tenant act or for other good cause. The lease defines "material noncompliance to mean, inter alia, "one or more substantial violations of this Agreement," or "repeated minor violations of this Agreement which disrupt the livability of the project, adversely affect the health or safety of any person or the right of any Tenant to the quiet enjoyment of the leased premises and related project facilities, interfere with the management of the project or have an adverse financial effect on the project." The lease also provides that Goldberg may terminate the lease based on criminal activity by a tenant that "threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises)" or if Goldberg determines the tenant has engaged in criminal activity, regardless of whether the tenant has been arrested or convicted for such activity.

         On June 27, 2016, Goldberg sent notice of termination of the lease to Sloane. The notice stated: "[t]he grounds for termination are material noncompliance of the Lease for the specific reasons" identified in the notice. The notice identified four incidents that Goldberg considered to be violations of the lease. The first incident involved an email Sloane sent to Goldberg's manager on October 14, 2013, which the parties refer to as "the Bengal tiger email." In the email, Sloane complained to management that the rules at Goldberg were not being enforced and made the following statements:

If I want to put a used car in the trash room I am sure it will be OK. After all there is not a week that goes by when someone does not put a toaster, pots and pans, etc., in the trash room. If I want to walk a Bengal Tiger through the building and on the grounds, I will OK [sic] with that. After all there is a certain black dog that is walked around the grounds without a leash. . . So as soon as my tiger gets here from India I will give you notice. You might want to carry an elephant rifle with you on your patrols of the building. If I want to pee in the elevator floor . . . well why not? There is a little dog who lives in my building that does that on a regular basis with nothing said or done. So if I happen to be in the elevator with my tiger either one of us or both might want to use the facilities . . . well, you know. . . .

         Shortly after Sloane sent this email, Goldberg sent a certified letter from its attorney denying that it did not enforce the rules. The letter further stated that Sloane's threats would not be tolerated and if he carried out any of the threats Sloane would be considered in violation of his lease.

         The second incident cited as grounds for termination involved Sloane's comments to Goldberg employee LaWanda Galloway. On December 21, 2015, Galloway reported to management that, on her way to the restroom Sloane was in the hallway passing the dining room. As she tried to pass him, Sloane, who uses an electric scooter for mobility, began to back up his electric scooter and nearly hit her. When Galloway told Sloane he almost hit her, Sloane said: "I wouldn't hit you I'd shoot you. I don't want to get blood on my scooter." Sloane testified that he was joking in the style of Don Rickles. Galloway, however, did not view the comment as a joke. Instead, she told management that the comments from Sloane frightened her and she would no longer work with Sloane on his recertifications.[1]Goldberg's manager Phyllis Davis had to fly in from out of state to cover recertifications with Sloane. Goldberg again sent a certified letter to Sloane from its attorney stating: "you attempted to run over one of Landlord's staff with your electric scooter on your way to the dining room and then threatened to shoot the staff member when she attempted to address the incident with you." Goldberg notified Sloane that it was a violation of his lease and that any future violation of the lease and House Rules would be a basis for termination of the lease.

         The third incident concerned a complaint Sloane made to Goldberg through the front desk window on May 17, 2016. On that day, Sloane was complaining about wait times at the elevator for the high-rise and stated in a loud voice he had to wait four times for an elevator because the "fat f***ing Russian broads" barge into the elevator in front of him. Sloane had previously complained about Russian female residents who had jumped in front of him to get on the elevator and felt Goldberg was doing nothing about it. Goldberg informed Sloane, again with a letter from its attorney, that Sloane excessively raised his voice on May 17, 2016 when he "complained about having to wait for the elevator and expressed vulgar and ethnic slurs against other tenants regarding such issues."[2] Goldberg again viewed Sloane's comments to be rude and threatening behavior that constituted a violation of his lease, and warned that any future rude, abusive, or threatening behavior would constitute a basis for termination.

         The fourth incident cited for termination related to another email sent by Sloane on June 24, 2016. In that email, Sloane apologized for losing his temper with a visitor to the high-rise on the previous afternoon. On the previous afternoon Sloane yelled in a loud voice at visitor Yuri Chubinsky, a caregiver to another tenant, and called Chubinsky an idiot. According to Sloane, Chubinsky had a history of parking his vehicle in front of the high-rise for long periods of time when coming to pick up the tenant, and in doing so blocked the covered portion of the front entrance. At one point, Chubinsky blocked a Metro bus attempting to drop off Sloane when it was raining and caused Sloane's electric scooter to get wet. Three reports of complaints about Sloane's yelling at Chubinsky were filed with Goldberg. In his apology email on June 24, 2016, Sloane stated he "lost his temper with a man who comes to the property all the time and never signs in and leaves his car out front for a long time blocking the way for others." After making several other complaints about tenants, Sloane stated:

It is not easy to live at this property with these rude people who do not speak English and behave like they own the building. Three times in the space of about two hours was just too much and I lost my temper with the last one. I apologize. Be thankful that I do not have a pistol. I might have shot them all. Ha!

         Goldberg's manager Davis testified that Sloane's comments in the June 24, 2016 email (as well as the comment made to Galloway) were threatening and constituted criminal activity. At that point, Davis felt she had no other choice but to end Sloane's residency at the high-rise.

         Goldberg sent the June 27, 2016 notice of termination and informed Sloane that the lease was being terminated effective July 7, 2016. After receiving the notice, Sloane and his daughter met with counsel for Goldberg regarding the termination. After that meeting, Goldberg and Sloane signed a document titled "Cancellation of Apartment Lease Contract," in which Sloane agreed to vacate the premises by August 1, 2016.[3] Sloane sent an email to Goldberg on July 22, 2016, stating that he rescinded the cancellation agreement, and he contends in this suit that the cancellation agreement does not comply with the requirements for terminating the lease. When Sloane had not vacated the apartment by August 1, 2016, Goldberg sent a notice giving him three days to vacate. Sloane did not move out of the premises and remains at Goldberg without Goldberg's permission.

          On August 8, 2016, Goldberg filed a petition for forcible detainer in the justice of the peace court to evict Sloane from apartment 4407. Sloane filed an answer and on August 25, 2016, the justice court signed a judgment in favor of Goldberg awarding Goldberg possession of the apartment, $208 in rent, $1, 500 in attorneys' fees, and $116 in court costs. Sloane appealed to the county court for a trial de novo.[4]

         In county court, Goldberg amended its petition and cited additional instances of misconduct by Sloane that it contends constitute violations of the lease, including comments made by Sloane to fellow residents using rude or derogatory language, use of his electric scooter at unsafe speeds in the halls, lobby and common areas, and use of racial epithets when complaining about other people at Goldberg. Sloane filed his answer denying the allegations and pleading several affirmative defenses, including immateriality of the alleged breaches of the lease and Goldberg's own prior material breach of the lease.

         The case proceeded to a jury trial in the county court. At the charge conference, Sloane requested that the court submit a question, with instructions, on excuse. Sloane's proposed question would have allowed the jury to find Sloane's failure to comply with the lease excused if the failure to comply was not material or if Goldberg previously failed to comply with a material obligation of the same lease. Sloane also requested that the trial court include an instruction for the term "material" that would have included the common law materiality factors set forth in Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 199 (Tex. 2004). The trial court discussed and refused on the record at the charge conference to submit the proposed question on excuse and the instruction on materiality, though the trial court did not endorse the tendered question and instruction as refused.

         The trial court submitted five questions to the jury. Question 1 asked whether Sloane failed to comply with the lease agreement and included as instructions the provisions of the lease related to material noncompliance and criminal activity. The jury answered "yes." Question 2 asked whether Sloane failed to comply with the Cancellation of Apartment Lease Contract, to which the jury answered "yes." Question 3 asked whether Goldberg has "a right of possession of the Leased Premises," to which the jury answered "yes." Question 4 asked what sum of money should be assessed against Sloane for amounts due Goldberg for unpaid rent, to which the jury answered $1, 869.00. Question 5 asked what sum should be awarded against Sloane for attorneys' fees, to which the jury responded $46, 961.69 for representation through trial, $10, 000.00 for representation in the court of appeals, and $10, 000.00 for representation in the Supreme Court of Texas.

         The trial court rendered a judgment of possession in favor of Goldberg based on the jury's verdict and awarded $46, 961.69 in attorneys' fees, plus $20, 000.00 in conditional appellate attorneys' fees, and $1, 869.00 in unpaid rent. The trial court expressly stated in its judgment that Goldberg terminated Sloane's right to occupy the leased premises "as required by law," that ...

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