Edgar Gluck v. Philip Hadlock ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00411-CV
EDGAR GLUCK APPELLANT
V.
PHILIP HADLOCK APPELLEE
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
After a jury trial in this landlord-tenant case, the trial court entered
judgment against Appellant Edgar Gluck and in favor of Appellee Philip Hadlock.
Gluck contends in seven issues that the evidence is legally and factually
insufficient to support the judgment. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual Background
In 2005, Hadlock and his wife entered into a written agreement with Gluck
to lease a home for a one year term ending August 31, 2006.2 Hadlock gave
Gluck notice in May 2006 that he and his wife would vacate the property by
August 31, 2006. Hadlock testified that although they had paid their rent for all of
August, he moved the majority of their belongings from the house on August 12,
2006. When he left, Hadlock left their cat, several boxes containing work files
and small electronics, and a piece of artwork at the house to be retrieved before
the end of the month. However, when Hadlock’s sister-in-law Claire Murray went
to the house on August 13 or 14 to retrieve the cat, there was only a ―small
grouping of personal articles in the middle of the living room‖; the artwork was not
in the house, and Hadlock’s other belongings had been placed at the curb.
Hadlock then began calling Gluck and finally spoke with him on August 16.
Gluck admitted to Hadlock that he had entered the house and placed the items
by the curb and that he intended to immediately lease the property to a new
tenant. Hadlock testified that he called the house later in August and that
another person answered. Hadlock testified that he felt that Gluck had prohibited
him from returning to the property because someone else was living there.
Hadlock testified that he sent a letter to Gluck on August 17, 2006,
requesting return of the $750 security deposit and including his forwarding
2
Hadlock’s wife is not a party to the lawsuit.
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address. He also testified that his wife sent Gluck a letter in June 2007
containing the same forwarding address and again requesting the return of the
security deposit. Gluck admitted at trial that Hadlock was entitled to the refund of
his security deposit and that he had Hadlock’s address before the lawsuit was
filed. Gluck also testified that he sent a check to Hadlock’s wife in September
2006, but he said that the check was never cashed so he stopped payment on it.
Although Gluck testified that he provided the stop payment to his attorney, the
stop payment was not offered into evidence at trial. In addition, Hadlock’s
counsel cross-examined Gluck with questions suggesting that the check Gluck
claimed to have sent to Hadlock’s wife had been written much later than the date
reflected on the check.
The jury returned a unanimous verdict for Hadlock with specific findings
that Hadlock or his wife provided a forwarding address in writing to Gluck; that
Gluck acted in bad faith by retaining Hadlock’s security deposit; that Gluck
intentionally prevented Hadlock from entering the house on or before August 31,
2006; that Gluck removed Hadlock’s artwork from the property without Hadlock’s
permission; that the sentimental value of the artwork was $2,000; and that
Hadlock should recover $10,000 in reasonable and necessary attorneys’ fees.
The trial court signed a final judgment for Hadlock on August 28, 2009, and this
appeal followed.
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III. Discussion
In seven issues, Gluck contends that the evidence is insufficient to support
the jury’s findings that he intentionally prevented Hadlock from entering the
house, that Hadlock or his wife provided him with a forwarding address, that he
acted in bad faith by retaining Hadlock’s security deposit, that the sentimental
value of Hadlock’s artwork is $2,000, and that Hadlock’s reasonable and
necessary attorneys’ fees are $10,000.
A. Standards of Review
In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to
support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450
(Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). We may
sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital
fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;
or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied,
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526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient
Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
(op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
B. Exclusion from the House
Gluck contends in his first issue that there is no evidence to support the
jury’s finding that he intentionally prevented Hadlock from entering the house.
Texas Property Code section 92.0081 prohibits a landlord from ―intentionally
prevent[ing] a tenant from entering the leased premises except by judicial
process‖ unless one of three exceptions applies. See Tex. Prop. Code Ann.
§ 92.0081(b) (Vernon Supp. 2010). Gluck does not contend that one of the three
exceptions applies.
Gluck argues that there is no evidence that Hadlock was physically
prevented from entering the premises or that Hadlock even attempted to enter
the premises after August 14. Gluck also points to evidence that he did not
change the locks to the house, that Hadlock retained a garage door opener well
beyond the lease termination date, and that Gluck did not lease the house to a
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new tenant until the third week of September. But the jury heard conflicting
testimony about Hadlock’s access to the house. For example, the jury heard
testimony that Gluck had entered the house between August 12 and August 14
without Hadlock’s permission and moved Hadlock’s personal items to the curb,
that Gluck told Hadlock on August 16 that Gluck would immediately lease the
house, that someone answered the telephone when Hadlock called the house
later in August, and that Hadlock felt he could not return to the property because
someone else was living there.
―The jury is the sole judge of the credibility of witnesses and the weight to
be given their testimony.‖ In re Boatman, 266 S.W.3d 80, 86 (Tex. App.—Fort
Worth 2008, no pet.). Thus, the jury was free to assign more weight to Hadlock’s
testimony and conclude that Gluck intentionally prevented Hadlock’s access to
the house by reletting it to another tenant before Hadlock’s lease term had
expired. Applying the appropriate standards of review, we hold that there is
legally and factually sufficient evidence to support the jury’s finding that Gluck
intentionally prevented Hadlock from entering the leased premises. See Cent.
Ready Mix Concrete Co., 228 S.W.3d at 651; Pool, 715 S.W.2d at 635. We
overrule Gluck’s first issue.
C. Retention of Security Deposit
Gluck argues in his second and third issues that the evidence is legally
and factually insufficient to support the jury’s findings that Hadlock provided him
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with a forwarding address and that he acted in bad faith by retaining Hadlock’s
security deposit.
A landlord is obligated to return a tenant’s security deposit or provide a
written description of damages and charges once the tenant provides the
landlord with a written statement of the tenant’s forwarding address. Tex. Prop.
Code Ann. § 92.107(a) (Vernon 2007). In addition, a landlord who retains a
security deposit in bad faith ―is liable for an amount equal to the sum of $100,
three times the portion of the deposit wrongfully withheld, and the tenant’s
reasonable attorney’s fees in a suit to recover the deposit.‖ Id. § 92.109(a)
(Vernon 2007). It is the landlord’s burden to prove that the retention of the
security deposit was reasonable. Id. § 92.109(c).
Hadlock testified that he sent a letter containing his forwarding address to
Gluck on August 17, 2006, by certified mail. Hadlock testified that he lost the
return receipt and that he did not retain a signed copy of the letter; the copy
admitted at trial was printed from Hadlock’s computer. Hadlock also testified that
his wife sent a letter to Gluck’s attorney in June 2007 containing the same
forwarding address.
Gluck admitted that Hadlock was entitled to have the security deposit
returned, but he denied receiving the August 17, 2006 letter and testified that he
sent Hadlock’s wife a check for the security deposit in September 2006. Gluck
testified, however, that he issued a stop payment on the check after Hadlock’s
wife failed to cash it, and although Gluck testified that he provided the stop
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payment to his attorney, the stop payment was not offered into evidence at trial.
Moreover, the jury heard Hadlock’s attorney cross-examine Gluck with questions
suggesting the check to Hadlock’s wife was written much later than the date
reflected on the check.
Again, the jury heard conflicting evidence concerning the security deposit,
and the jury is the sole judge of the credibility of the witnesses. See Boatman,
266 S.W.3d at 86. We are not free to substitute our own judgment for that of the
jury. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
Applying the appropriate standards of review, we hold that legally and factually
sufficient evidence supports the jury’s findings that Hadlock or his wife provided a
forwarding address to Gluck and that Gluck retained the security deposit in bad
faith. See Cent. Ready Mix Concrete Co., 228 S.W.3d at 651; Pool, 715 S.W.2d
at 635. We overrule Gluck’s second and third issues.
D. Sentimental Value of Artwork
Gluck contends in his fifth issue that the trial court erred by instructing the
jury that sentimental value was the proper measure of damages for Hadlock’s
artwork, and he argues in his fourth issue that the evidence is legally and
factually insufficient to support the jury’s finding that the sentimental value of the
artwork is $2,000.
1. Preservation of Jury Charge Complaint
Gluck argues that the trial court erred by instructing the jury that
sentimental value is the appropriate measure of damage for the loss of Hadlock’s
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artwork. However, the reporter’s record on appeal does not include a
transcription of the charge conference. Gluck therefore failed to preserve his fifth
issue for appellate review, and we overrule it. See, e.g., Adams v. Liberty Mut.
Ins. Co., No. 01-09-00178-CV, 2010 WL 143450, at *4 (Tex. App.—Houston [1st
Dist.] Jan. 14, 2010, no pet.) (mem. op.); Ortiz v. Martinez, No. 01-05-00984-CV,
2007 WL 1441042, at *3 (Tex. App.—Houston [1st Dist.] May 17, 2007, no pet.)
(mem. op.).
2. Sufficient Evidence of Sentimental Value
Sentimental value is ―the reasonable special value of [the lost] articles to
their owner taking into consideration the feelings of the owner for such property.‖
Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 305 (Tex. 1963). ―The owner’s
feelings thus help determine the value‖ of the lost or damaged item. City of Tyler
v. Likes, 962 S.W.2d 489, 497 (Tex. 1997).
Hadlock testified that the artwork was a sculpture on a wood base; that it
was approximately eighteen inches tall; and that it was a mixed media piece in a
semi-representational style, meaning that it was partly abstract and partly
recognizable. Hadlock also testified that he had been developing it during the
preceding year, that he had invested about 500 hours into making it, and that the
artwork was ―extremely important‖ to him. He said that it was important because
of the time invested, because he planned to submit it to an agency in Paris in
order to establish himself with the agency, and because he believed that it
represented his abilities very well. Finally, Hadlock testified that he had looked at
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similar works at the Paris agency and that he believed his artwork was worth
$2,000. Gluck offered no evidence to rebut Hadlock’s testimony.
Applying the appropriate standards of review, we hold that legally and
factually sufficient evidence supports the jury’s findings that Hadlock’s artwork
has a sentimental value of $2,000. See Cent. Ready Mix Concrete Co., 228
S.W.3d at 651; Pool, 715 S.W.2d at 635; see also Garey Constr. Co., Inc. v.
Thompson, 697 S.W.2d 865, 867 (Tex. App.—Austin 1985, no pet.) (holding
evidence sufficient to sustain award for intrinsic value of trees and stating that
testimony of a specific dollar amount ―is not required in a case involving loss of
intrinsic value of property‖ because ―[a]ny value for intrinsic loss must be left to
the jury‖). We overrule Gluck’s fourth issue.
E. Attorneys’ Fees
In his sixth and seventh issues, Gluck contends that the award of $10,000
in attorneys’ fees is excessive and that the evidence is legally and factually
insufficient to support the award.
―The reasonableness of attorney’s fees is ordinarily left to the factfinder,
and a reviewing court may not substitute its judgment for the jury’s.‖ Smith v.
Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009). To determine the
reasonableness of a fee, the factfinder should consider:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service
properly;
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(2) the likelihood . . . that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)
(citing Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov’t Code, tit. 2,
subtit. G app. (State Bar Rules, art. X, § 9) (Vernon Supp. 2010)).
Gluck first contends that there is no evidence Hadlock actually incurred
any attorneys’ fees because his lawyer had agreed not to charge him. However,
―[t]he existence of a fee contract and proof of fees actually incurred or paid are
not prerequisites to the recovery of attorney’s fees in Texas.‖ AMX Enters.,
L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 520 (Tex. App.—Fort Worth
2009, no pet.); see also Brown v. Comm’n for Lawyer Discipline, 980 S.W.2d
675, 684 (Tex. App.—San Antonio 1998, no pet.) (affirming award of attorneys’
fees to attorneys representing the Commission pro bono). Thus, the pro bono
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representation by Hadlock’s counsel does not prohibit the recovery of attorneys’
fees.
Gluck also contends that the award of attorneys’ fees is excessive
because Hadlock’s counsel agreed that the amount of fees was not typical for a
landlord-tenant case, because Hadlock’s attorneys’ fees were more than twice
the amount of Gluck’s attorneys’ fees, and because Hadlock’s counsel failed to
segregate the time spent prosecuting claims for which fees are not recoverable.
However, Hadlock’s counsel did testify about segregated fees. Specifically,
Hadlock’s counsel testified that a reasonable fee in his opinion would be $12,895
but that a reduction ―probably in the range of ten percent‖ was necessary
because some of the time billed ―was spent on claims for which attorneys’ fees
are not recoverable.‖
In addition, Hadlock’s counsel testified that the fees are based on an
hourly rate of $200, that he has been practicing law for five years in Dallas
County and Tarrant County, that the total amount of fees is reasonable, that
much of the time was spent attending court for numerous motions that were filed
and a deposition noticed by Gluck, and that a reasonable fee for the case—
taking the segregation of non-recoverable fees into account—is $10,000. On
cross-examination, Hadlock’s counsel agreed that most landlord-tenant cases
are ―resolved fairly quickly‖ and do not typically involve fees near $10,000 but
that the fees sought ―were really actually kind of low‖ based on what had to be
done in this case. Thus, Hadlock’s counsel testified about four of the eight Arthur
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Anderson factors. See Arthur Andersen & Co., 945 S.W.2d at 818; see also
AMX Enters., L.L.P., 283 S.W.3d at 520 (discussing uncontroverted evidence of
four of eight Arthur Anderson factors).
Finally, even though the $10,000 attorneys’ fee award exceeds the
damages awarded and the fees charged by Gluck’s counsel, these do not
necessarily render the award of $10,000 excessive. Hadlock’s attorney testified
about the services required given the unique circumstances of this case. See
Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 685 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied) (affirming $30,000 attorney fee award in case involving
$7,035.26 in actual damages); Cordova v. Sw. Bell Yellow Pages, Inc., 148
S.W.3d 441, 445–49 (Tex. App.—El Paso 2004, no pet.) (affirming fee award of
$18,007 in case involving $7,092.18 in actual damages); see also Norris v.
Jackson, No. 02-09-00265-CV, 2010 WL 4261541, at *10–12 (Tex. App.—Fort
Worth Oct. 28, 2010, no pet.) (mem. op.) (affirming award of $27,500 in
attorneys’ fees in case involving $9,000 in damages).
Applying the appropriate standards of review, we hold that legally and
factually sufficient evidence supports the award of $10,000 in attorneys’ fees.
We also hold that the award of $10,000 in attorneys’ fees is not excessive. See
Cent. Ready Mix Concrete Co., 228 S.W.3d at 651; Pool, 715 S.W.2d at 635;
Bank of Tex., 276 S.W.3d at 685; Cordova, 148 S.W.3d at 445–49. We overrule
Gluck’s sixth and seventh issues.
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IV. Conclusion
Having overruled each of Gluck’s seven issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: March 17, 2011
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