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Yarborough v. Vitrola Bar, Inc.

Court of Appeals of Texas, Fourteenth District

October 15, 2019

SCARLETT YARBOROUGH, Appellant
v.
VITROLA BAR, INC., PETE MITCHELL, AND VERA MITCHELL, Appellees

          On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 2015-32911

          Panel consists of Justices Wise, Jewell, and Poissant.

          MEMORANDUM OPINION

          Margaret "Meg" Poissant Justice

         Appellee Vitrola Bar, Inc., a commercial tenant, sued its landlord Scarlett Yarborough for breach of contract, alleging that Yarborough wrongfully withheld its security deposit. Yarborough filed counter and cross claims against Vitrola Bar as well as the owners of the bar, appellees Pete Mitchell and Vera Mitchell, for damages to the leased building, in an amount in excess of the security deposit. The trial court granted summary judgment in favor of appellees. We affirm.

         I. Background

         Vitrola Bar leased a commercial property from Yarborough for five years to operate Leon's Lounge, a bar located at 1006 McGowen in Houston, Texas. Vitrola Bar paid Yarborough a security deposit in the amount of $11, 400.00. At the conclusion of the lease, Vitrola Bar vacated the property and requested a return of its security deposit. A dispute arose between the parties related to the security deposit and alleged damages to the premises.

         On June 9, 2015, Vitrola Bar filed suit against Yarborough for wrongful withholding of the security deposit and breach of contract on a commercial lease. Yarborough filed an answer and counter and cross claims for alleged damages to the building in excess of the security deposit. Yarborough filed her Fourth Amended Counterclaim and Cross Action alleging breach of contract, defamation, conversion and intentional infliction of emotional distress against Vitrola Bar and defamation, conversion and intentional infliction of emotional distress against Pete Mitchell and Vera Mitchell.

         On October 3, 2016, appellees filed a Traditional and No-Evidence Motion for Summary Judgment limited to Yarborough's counterclaims and cross-claims. Notices were sent for hearings on the Motion for Summary Judgment for October 21, 2016, November11, 2016 and November 18, 2016. On November 28, 2016, appellees filed a "Third Amended Notice of Oral Hearing on Vitrola Bar, Inc. and Pete and Vera Mitchell's No Evidence and Traditional Motion for Summary Judgment and Motion to Exclude Duane Bradley" and set a hearing for January 6, 2016. Appellees contend this was a typographical error and the hearing notice should have stated January 6, 2017.

         On December 16, 2016, appellees filed an Amended No Evidence and Traditional Motion for Summary Judgment that sought judgment on appellant's claims (i.e., defamation, conversion, breach of contract, and intentional infliction of emotional distress) as well as summary judgment on appellee Vitrola Bar's claim for breach of contract against Yarborough and an award of attorney's fees. The notice for hearing filed on December 16, 2016 again stated a hearing date of January 6, 2016-according to appellees, a typographical error that should have indicated January 6, 2017.

         A hearing was held on January 6, 2017, which was twenty-one days from the December 16, 2016, filings. According to appellees, Yarborough and her counsel were present at the hearing, and affirmatively argued the merits of her response to the motions. Appellees assert the trial court considered all of the summary judgment evidence on file, including argument and evidence related to appellees' attorney's fees. Appellees maintain the trial court took the motions under advisement and ordered the parties to confer regarding settlement pending a ruling on summary judgment. Appellant contends that the only motion heard by the trial court on January 6, 2017, was her Motion to Strike. Appellant argues that there is no evidence in the Clerk's Record, the Court's Electronic Docket Sheet, or the Court Activity Inquiry Screen that there was a January 6, 2017, hearing or submission related to appellees' Motion for Summary Judgment or Amended Motion for Summary Judgment. There is no reporter's record in this case.

         After the hearing, both parties filed supplemental briefing related to the amended motion for summary judgment. Yarborough filed additional affidavits in support of her Response to the Motion for Summary Judgment. Appellees filed a Supplemental Brief to the Amended Motion for Summary Judgment, updating the attorney's fees expended. On June 15, 2017, Perry Bass filed his Second Motion to Withdraw as Yarborough's counsel, noting therein that the pending Motions for Summary Judgment "had not been reset for hearing."

         On June 26, 2017, the trial court granted Yarborough's counsel's (Bass) Motion to Withdraw and, on the same date, granted appellees' Amended Motion for Summary Judgment. The court awarded appellees actual damages in the amount of $11, 400, reasonable and necessary attorney's fees of $106, 068.32, and pre- and post-judgment interest. This appeal followed.

         II. Analysis

         Yarborough asserts three issues on appeal, claiming the trial court erred by:

         (1)"ruling on Summary Judgment when there was no applicable Notice of Hearing and immediately after granting a Motion to Withdraw to Appellant's counsel;"

         (2)"granting Summary Judgment because the evidence raised a genuine issue of material fact;" and (3) "awarding attorney's fees as part of its Summary Judgment."

         A. Notice of Hearing

         In her first issue, Yarborough argues that the trial court erred in granting appellees' amended motion for summary judgment without notice of a hearing. Similarly, in her third issue, Yarborough maintains that the trial court's award of attorney's fees to appellee was in error because no hearing was conducted on appellees' amended motion for summary judgment and the trial court relied on supplemental evidence without a hearing being set. Yarborough further argues that the trial court erred in awarding fees because the attorney fee evidence was not segregated by client or by cause of action.

         Yarborough acknowledges that on December 16, 2016, appellees filed a notice of oral hearing on appellees' amended motion for summary judgment, which set the hearing date of "January 6, 2016." Yarborough argues that "[s]ince such date had passed prior to the filing of any Motion for Summary Judgment or Notice of Hearing, such a hearing date was an impossibility." Yarborough maintains that a hearing did take place on January 6, 2017, but only as to Yarborough's motion to strike the jury trial setting. Yarborough contends that there is "no evidence of a hearing on any Motion for Summary Judgment in the Clerk's Record, the Court's Electronic Docket Sheet, or the Court Activity Inquiry Screen that there was a January 6, 2017 hearing or submission related to either the Motion for Summary Judgment or the Amended Motion for Summary Judgment."[1]

         Appellees argue that a hearing on the amended summary judgment motion took place on January 6, 2017, with Yarborough's counsel participating and affirmatively arguing her response. Appellees contend no issue was raised as to the lack of hearing notice or the segregation of fees; appellees assert that ...


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