FROM
COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO.
C-1-CV-16-010128, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
Before
Justices Goodwin, Baker, and Triana
MEMORANDUM OPINION
THOMAS
J. BAKER, JUSTICE
Sitterle
Homes - Austin, LLC, (Sitterle) appeals from a summary
judgment granted in favor of appellees Amin-Patel
Investments, LLC;[1] Jaymini Patel; and Mitesh Patel. We will
reverse and remand.
FACTUAL
AND PROCEDURAL BACKGROUND
In
April 2016, Jaymini Patel and Mitesh Patel (collectively, the
Patels) purchased a home (the Property) from Sitterle.
Sitterle had been using the Property as a model home to
market other homes it was building in the area. Sitterle and
the Patels agreed that the Patels would lease the Property
back to Sitterle for use as a model home for an initial lease
period expiring on June 30, 2016. To that end, Sitterle
prepared a lease and sent it to the Patels for execution. The
Lease provided for a rental period beginning on the date of
closing of the Patels' purchase of the Property from
Sitterle and ending June 30, 2016. The Lease also provided
that:
Upon expiration of the Rental Period, this Lease shall
automatically extend for successive periods of thirty (30)
days each (each, an "Option Period" and
collectively, the "Option Periods"), on the same
terms and conditions as set forth herein, unless Tenant
provides Landlord with written notice indicating Tenant's
intent to terminate this Lease not later than sixty (60) days
prior to the expiration of the Rental Period or applicable
Option Period.
The
Lease also provided that all required notices must be in
writing and sent by (1) United States Postal Service, postage
prepaid, certified, return receipt requested; (2) any
nationally known overnight delivery services; (3) courier; or
(4) facsimile transmission; or be delivered in person.
After
the closing in April 2016, Sitterle continued to use the
Property as a model home based on the Lease. On June 24,
2016, Christophe Hardenne, the Sitterle sales representative
who had worked with the Patels in their purchase of the
Property, sent Mitesh Patel a text message that stated:
"Mitesh, the boss decided to move out of the home by the
end of the month. Best[.]" Mitesh Patel's text
message reply stated: "Okay thanks for the info[.]"
On June 29, Hardenne sent a text message to Mitesh Patel that
stated: "Will you be ok to have the big move on July
6th? Thx." Mitesh Patel replied with a text stating:
"I can't reference the lease. Is there a holdover
amount each day after June 30." Hardenne sent a text
back to Mitesh Patel that stated: "We will be out
tomorrow."[2] Later that day, Mitesh Patel sent the
following text message to Hardenne: "Do you know if
electric will be turned off July 1st. I totally forgot to
activate it under our name." Hardenne replied: "No
. . . 5 days after [we] leave."[3]
Sitterle
vacated the Property June 30, 2016. After that date Sitterle
did not access the Property, and its master key would no
longer open the lock once the Patels had used their key to
enter the Property.[4] Sitterle paid monthly rent for July,
August, and September 2016. Sitterle's representative
explained that because Sitterle did not give notice of its
intent to vacate the Property until June 24, 2016, and
because the Lease required that the notice be given sixty
days before the expiration of the initial rental period or
any Option Period, Sitterle was obligated to pay additional
monthly rent for three thirty-day Option Periods.
Sitterle's
president Brian Shields stated in his affidavit that soon
after Sitterle vacated the Property on June 30, Mitesh Patel
began contacting the company to request that Sitterle address
various warranty issues related to the Property. Shields
stated that in July 2016, Mitesh Patel requested that a
Sitterle representative meet him at the Property to discuss
various items on a list of warranty issues. On July 14, Roger
Jacoby with Sitterle met with Mitesh Patel at the Property to
go over the issues and perform warranty work. Shields stated
that at that time Sitterle did not have the ability to enter
the Property, and the only way it could perform the requested
warranty work was if one of the homeowners met the Sitterle
representative at the Property to unlock the door.
Beginning
on July 21, Mitesh Patel and Sitterle exchanged a series of
emails regarding additional warranty work. In response to
Sitterle's email stating that it was having
"tremendous difficulty getting hold of" him, Mitesh
Patel replied: "Sorry please have Chad call me at [phone
number] to coordinate any work that still needs to be
completed. We have not moved in therefore we are not always
available at that home." Sitterle and Mitesh Patel
continued over the next month to discuss completing the
warranty work requested by Patel and, on August 25, Mitesh
Patel sent Sitterle the following email:
chris
access to the home is available anytime he wants in. as you
are well aware we have yet to move in due to all the open
issues still lingering with sitterle. Also, the house was
rekeyed while your people had access to the home and keys
were distributed to who knows. It was confirmed ...