Wesley Schreiber, as Trustee for the Schreiber Family Trust v. Sam Cole and Wendy Cole ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00361-CV
________________________
WESLEY SCHREIBER, AS TRUSTEE FOR THE SCHREIBER
FAMILY TRUST, APPELLANT
V.
SAM COLE AND WENDY COLE, APPELLEES
On Appeal from the County Court at Law No. 2,
McLennan County, Texas
Trial Court No. 2012-0742-CV2; Honorable Brad Cates, Presiding
May 19, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Wesley Schreiber, as Trustee for the Schreiber Family Trust, appeals
from a judgment in favor of Appellees, Sam Cole and Wendy Cole, in a landlord-tenant
dispute brought by Appellees, as tenants, seeking damages and civil penalties pursuant
to section 92.00811 of the Texas Property Code for an allegedly unlawful lockout by
Appellant, as landlord. Appellees also sought recovery for personal property that was
removed from the leased premises by Appellant. By four issues, Appellant contends (1)
the evidence is legally and factually insufficient to support the trial court’s finding that
Appellees had not abandoned the leased premises,2 according to the definition of
abandonment contained in the lease agreement, (2) the trial court erred in admitting an
exhibit which identified and valued Appellees’ property that was disposed of by
Appellant, (3) the evidence is legally and factually insufficient to support the trial court’s
award of $3,500 in damages, and (4) the trial court erred in awarding Appellees’
attorney’s fees. We affirm.
BACKGROUND
Appellees leased the residential property in question pursuant to a lease
agreement that provided for a term commencing April 1, 2011, and ending March 31,
2012. According to the terms of the agreement, at the end of the primary term, the
lease automatically renewed on a month-to-month basis until either party provided the
other written notice of termination, not less than thirty days before the new termination
date. The agreement provided for the payment of rent in the sum of $775 per month for
each full month of the lease, payable on or before the first day of each month. If the
1
See TEX. PROP. CODE ANN. § 92.0081 (West 2014) (pertaining to the removal of property and
exclusion of a residential tenant and providing civil penalties for violation of the statute). For purposes of
this opinion, hereinafter referred to as “section” or “§.”
2
Because Appellant was asserting the lease agreement had terminated by virtue of Appellees’
abandonment of the premises, it was his burden to prove abandonment. Where the challenging party has
the burden of proof regarding an adverse finding, the appropriate challenge is either a great weight and
preponderance point or a matter of law point. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766
S.W.2d 264, 275-76 (Tex. App.—Amarillo 1988, writ denied).
2
rent was not paid by the 5th day of each month at 11:59 p.m., Appellees were required
to pay an initial late charge of $25, plus an additional late charge of $5 per day
thereafter until the rent and late charges were paid in full. Additional late charges for
any one payment could not exceed more than thirty days.
According to the terms of the lease agreement, a “surrender” of the premises
occurred when all occupants had vacated the property, according to the lessor’s
reasonable judgment, and one of the following occurred: (1) the passing of the date
specified in a written notice of termination or (2) the date Appellees returned the keys
and access devices provided to them. The lease agreement further provided that
Appellees would leave the leased premises in a clean condition free of all trash, debris,
and any personal property and that they would not abandon the leased premises.
Furthermore, the lease agreement provided that an “abandonment” occurred
when all of the following occurred: (1) Appellees vacated the leased premises, in
Appellant’s reasonable judgment, (2) Appellees were in breach of the lease agreement
by not timely paying rent, (3) Appellant had delivered written notice to Appellees by
affixing the notice to the inside of the main entry door, and (4) Appellees failed to
respond to the affixed notice by the time required in the notice, which would not be less
than 2 days after the date the notice was affixed to the main entry door. If Appellees left
any personal property in the leased premises “after surrendering or abandoning the
Property,” the lease agreement provided, among other remedies, that Appellant could
dispose of the property.
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The lease agreement further provided for the payment of attorney’s fees to “[a]ny
person who is a prevailing party in any legal proceeding brought under or related to the
transaction described in the lease.” The lease agreement required that all notices be “in
writing and [were] effective when hand-delivered, sent by mail, or sent by electronic
transmission.”
During a bench trial in May 2014, Sam testified that he and Wendy had lived in
the leased premises for seven years prior to their eviction—the last two of which
Appellant was their landlord. Toward the end of February 2012, Sam spoke to Kenneth
Cash, Appellant’s representative taking care of the leased premises, and told him that
they would be moving out. Appellees did not, however, give written notice of their intent
to terminate the lease. Cash responded that as long as Appellees were out by the end
of March, everything would be okay. Appellees then started moving out. On February
20th, Sam arranged for the water and gas to be turned off. These actions were
necessary to bring his accounts current and to get the utilities transferred to Appellees’
new house. On February 21st, Appellees began moving into their new residence.
Toward the end of February, Sam fell ill and was hospitalized until March 11th or
12th. As a result, Appellees did not pay their rent for the month of March when it was
due. On March 14th, Sam called Cash and was told his personal property had been
thrown away. Sam went over to the leased premises but could not enter because the
locks had been changed. When they had last been to the house, Appellees had their
remaining personal items boxed up and stacked by the front door, ready to pick up.
Some of the items of personal property had sentimental value. In addition, they still
needed to move several appliances, including a refrigerator, stand-up freezer, and a
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window air conditioner. Sam admitted that the rent had not been paid for the month of
March due to his hospitalization. He also testified he and his wife had not finished
moving their personal property out of the house and they had not abandoned the leased
premises. In addition, he testified he never received any written notice of termination of
the lease agreement.
During trial, Wendy testified from a written statement, Plaintiffs’ Exhibit Number
2, which was a list of personal items Appellees claimed were disposed of by Appellant—
some of which had sentimental value. Among other items, the personal items listed
included appliances, Wendy’s mother’s emerald ring, baby books, his and her wedding
attire, irreplaceable pictures, and mementos. Wendy corroborated her husband’s
testimony and testified that, because the term of the lease did not expire until the end of
March, she was under the impression that she had time to move the remaining items of
personal property. She testified that the value of the items listed on Plaintiffs’ Exhibit
Number 2 was around $5,000.3 She also testified Sam had given Appellant their new
address. On rebuttal, Sam testified that a page attached to the lease agreement also
gave Appellant their contact information, including their telephone number.
Cash testified Appellant acquired the leased premises from a previous landlord
and that he was familiar with Appellees. He testified he went to the leased premises on
March 12th and posted a notice on the residence’s front door inside the main entry door
stating Appellant considered the property to be abandoned and that they intended to
remove Appellees’ personal property within five days. He testified he had heard nothing
3
Appellant’s attorney objected to Wendy’s testimony because “it’s not been proved up” and the
numbers were “arbitrary numbers [that] have not been testified to by anybody.”
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from Appellees and did not know where they were living. At the expiration of that five
day period, he emptied the leased property and disposed of Appellees’ personal
property. Thereafter, he changed the locks. The following week, Cash received a call
from Appellees asking where their personal property was and he told them what he had
done. Appellees indicated they had intended to retrieve their remaining personal
property and pay rent for the month of March.
Cash recalled having a conversation with Sam concerning the possibility of
Appellees moving out, but nothing was in writing. He stated Appellees did not give him
an indication whether they intended to return or not after the lease expired. Walt Fair, a
real estate agent for thirty years, testified that when all the utilities are turned off, rent
has not been paid, a refrigerator still has food inside, and there is the smell of spoiled
food in the house, then there is no “question in his mind . . . that property has been
abandoned.” In addition, Steven Lee Cash, a real estate agent for thirty years, also
testified that when utilities are turned off and food in refrigeration units smells due to
spoilage, a house should be considered vacated or abandoned. These were all
conditions Cash testified were present when he determined the leased premises had
been abandoned and affixed the notice on the front door.
In its Findings of Fact and Conclusions of Law, the trial court found that, in
February 2012, Appellees orally notified Appellant of their intent to not renew the lease
but did not provide written notice as required by the lease agreement. On or about
March 12, 2012, Appellant posted written notice on the door of the leased premises
stating:
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YOUR DWELLING HAS BEEN ABANDONED. LANDLORD INTENDS TO
REMOVE AND DISPOSE OF ALL PROPERTY WITHIN 5 DAYS OF THIS
NOTICE.
When Appellant posted the notice on the door of the leased premises, Appellees’
personal property was boxed for transport and placed next to that door. Appellees’
personal property included personal and family photos, specialty clothing, and jewelry
items which were, in some cases, “clearly of a nature of special personal value and
unlikely to be intentionally discarded” by Appellees. On or about March 18, 2012,
Appellant changed the door locks on the leased premises and removed and disposed of
most of Appellees’ personal property. The fair market value of Appellees’ personal
property retained or destroyed was $3,500 and their reasonable and necessary
attorney’s fees were $1,500.
In its Conclusions of Law, the trial court found Appellees had not abandoned the
leased premises and it was not reasonable for Appellant to conclude the leased
premises were abandoned as that term is defined by the lease agreement. He further
determined that, at the time Appellant changed the locks, the lockout and removal of
Appellees’ personal property was wrongful. The trial court awarded $6,000 in damages
as follows: $3,500 for personal property disposed of by Appellant, $1,500 in attorney’s
fees, $1,000 as a statutory civil penalty pursuant to section 92.0081(h), and $775 as
one month’s rent, less an offset of one month’s delinquent rent. The trial court also
awarded Appellees $286 in court costs and post-judgment interest at the rate of 5% per
annum from the date of judgment. Neither party sought any clarification of the trial
court’s Findings of Fact and Conclusions of Law. This appeal followed.
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ISSUE ONE
By his first issue, Appellant contends the evidence is legally and factually
insufficient to support the trial court’s finding that Appellees had not abandoned the
leased premises, according to the definition of abandonment contained in the lease
agreement.4 Abandonment is a mixed question of law and fact. Because it was
Appellant’s burden to establish abandonment, this issue essentially asserts that either
(1) Appellant has established the contrary, i.e., abandonment of the premises, as a
matter of law or (2) the trial court’s finding of no abandonment is against the great
weight and preponderance of the evidence. We reject both premises.
In a legal sufficiency review, a reviewing court must view the evidence in a light
most favorable to the disputed finding, indulging every reasonable inference that
supports the finding, while disregarding all evidence and inferences that are contrary to
that finding; provided, however, the court may not disregard evidence that allows only
one inference. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Here,
Appellees testified they had communicated with Appellant’s representative and had
agreed to be out of the leased premises by the end of March. Their personal
possessions were not merely left in place but had, instead, been placed in boxes which,
in turn, had been placed by the door as if in anticipation of being retrieved and removed.
Furthermore, construed in the light most favorable to the trial court’s ruling, the boxes
contained items “clearly of a nature of special personal value and unlikely to be
intentionally discarded by the owners.” Because the trial court was presented evidence
4
In its Conclusions of Law, the trial court found that “[Appellees] had not abandoned the Leased
Premises” and “[i]t was not reasonable for [Appellant] to conclude [Appellees] had abandoned the
premises, as that term is defined in the Lease.”
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that the lease agreement did not terminate by its own terms and that Appellees intended
to return to retrieve their personal property, we cannot say that abandonment of the
leased premises was established as a matter of law.
In reviewing factual sufficiency, the reviewing court must consider, examine, and
weigh all of the evidence in the record. Maritime Overseas Corp. v. Ellis, 971 S.W.2d
402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450
(1998). In doing so, the court no longer considers the evidence in the light most
favorable to the disputed finding; instead, the court considers and weighs all the
evidence, and sets aside that finding only if it is so contrary to the great weight and
preponderance of the evidence as to be clearly wrong and unjust. Id. at 407. A
reviewing court may not substitute its own judgment for that of the trier of fact, even if it
would reach a different conclusion based on the evidence. Id.
Here, it is undisputed that (1) Appellees were in breach of the lease agreement
by not timely paying rent, (2) Appellant had delivered written notice to Appellees by
affixing the notice to the inside of the main entry door, and (3) Appellees failed to
respond to the affixed notice by the time required in that notice. Therefore, according to
the definition of abandonment contained in the lease agreement, the disputed issue
boils down to whether, in Appellant’s reasonable judgment, Appellees had vacated the
leased premises. Appellant contends he reasonably believed Appellees had vacated
the leased premises entitling him to avail himself of the contractual remedy of entering
the premises to dispose of any abandoned personal property. As stated above, the trial
court found that it was not reasonable for Appellant to conclude Appellees had
abandoned the premises, and in light of all the facts set forth above, we cannot say the
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trial court’s conclusion was against the great weight and preponderance of the
evidence. Appellant’s first issue is overruled.
ISSUE TWO
At trial, Appellant objected to the introduction into evidence of Plaintiffs’ Exhibit
Number 2, a list of items of personal property and their values. Testimony was
presented that the list was a statement of the items missing from the leased property
and that it accurately summarized the value of the items that were removed from the
premises. Appellant’s attorney objected to the introduction of the list into evidence
because “it’s not been proved up,” “the arbitrary numbers on [the list] have not been
testified to by anybody,” and her testimony was not consistent with the list.
We review a trial court’s decision to admit or exclude testimony under an abuse
of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906
(Tex. 2000). The test for abuse of discretion is whether the trial court acted without
reference to any guiding rules and principles; in other words, we must decide whether
the act was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39
(Tex. 2004). We must uphold an evidentiary ruling if there is any legitimate basis for it.
State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.7 (Tex. 1989).
On appeal, Appellant asserts a number of grounds upon which we should find
that the trial court abused its discretion in admitting Plaintiffs’ Exhibit Number 2 into
evidence, i.e., the exhibit was hearsay, Wendy did not have knowledge of the items on
the list or explain how she valued each item, nor did she explain how she knew the
boxes remaining on the leased premises contained those particular items. These are
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not the objections Appellant’s counsel made during the bench trial. Instead, Appellant’s
counsel objected on the basis that the evidence was inadmissible because “it’s not been
proved up.” Such an objection is a general objection and, as such, is insufficient to
preserve error. Walden v. City of Longview, 855 S.W.2d 875, 878 (Tex. App.—Tyler
1993, no writ) (objection that party failed to lay proper predicate for introduction of
statement into evidence too general to preserve error). Accordingly, we overrule issue
two.
ISSUE THREE
Appellant next asserts that there is no evidence or factually insufficient evidence
Appellees suffered damages because, in essence, there was no evidentiary basis for
admitting the values placed on the items as contained in Plaintiffs’ Exhibit Number 2. In
support, Appellant asserts Wendy’s personal property valuations are arbitrary and
unreliable.
Whether the values in Plaintiffs’ Exhibit Number 2 are arbitrary and unreliable are
essentially evidentiary objections that should have been made at trial if Appellant
wanted to preserve error. As stated in our discussion of issue two, Appellant’s objection
at trial was too general to preserve error. What Appellant attempts to do here is to
refine a general objection at trial regarding the admissibility of Plaintiffs’ Exhibit Number
2 into a specific basis for appeal. This he cannot do. See Walden, 855 S.W.2d at 878.
Issue three is overruled.
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ISSUE FOUR
Appellant next asserts the trial court erred in awarding attorney’s fees to
Appellees because they breached the lease agreement by not paying rent and the trial
court’s judgment is in error. Again, we disagree.
Attorney’s fees may be recovered only if specifically provided for by statute or
contract, Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011), and the plaintiff proves a
compensable injury and secures an enforceable judgment in the form of damages and
equitable relief. Intercontinental Group Partnership v. KB Home Lone Star L.P., 295
S.W.3d 650, 651-52 (Tex. 2009). Here, both the contract and section 92.0081(h)(2)
provide for the recovery of reasonable attorney’s fees to the prevailing party, and
Appellees have proven a contractual claim for compensatory damages and secured an
enforceable judgment for statutory relief. Thus, they have “prevailed.” Id. Accordingly,
Appellees are entitled to recover their attorney’s fees and Appellant’s fourth issue is
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
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