Appeal from the 189th District Court Harris County, Texas
Trial Court Cause No. 2015-32911
consists of Justices Wise, Jewell, and Poissant.
Margaret "Meg" Poissant Justice
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.
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.
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.
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.
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,
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.
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."
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.
asserts three issues on appeal, claiming the trial court
on Summary Judgment when there was no applicable Notice of
Hearing and immediately after granting a Motion to Withdraw
to Appellant's counsel;"
Summary Judgment because the evidence raised a genuine issue
of material fact;" and (3) "awarding attorney's
fees as part of its Summary Judgment."
Notice of Hearing
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.
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
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