A-TX Property Management v. Jesus Rodriguez and Sandra Rodriguez ( 2013 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-11-00655-CV
    A-TX Property Management, Appellant
    v.
    Jesus Rodriguez and Sandra Rodriguez, Appellees
    FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,
    NO. C-1-CV-11-005496, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
    MEMORANDUM OPINION
    A-TX Property Management appeals the county court’s judgment in favor of
    Jesus Rodriguez and Sandra Rodriguez,1 acting pro se, that A-TX withheld a security deposit in bad
    faith in violation of section 92.109 of the Texas Property Code. See Tex. Prop. Code § 92.109(a)
    (landlord who in bad faith retains security deposit liable for amount equal to sum of $100, three
    times amount wrongfully withheld, and tenant’s attorney’s fees). A-TX challenges the legal and
    factual sufficiency of the evidence and the amount of damages awarded. For the reasons that follow,
    we affirm the county court’s judgment conditioned on remittitur.
    1
    We refer to the Rodriguezes individually by their first names for clarity.
    FACTUAL AND PROCEDURAL BACKGROUND
    In January 2009, the Rodriguezes leased a home from Shamrock Property
    Management and paid a security deposit in the amount of $1,200. The written lease agreement
    contained a provision titled “Move-In Condition” requiring the tenant to complete an “Inventory and
    Condition Form” (Move-In Report) within five days after the commencement date of the lease. The
    lease further provided that if the tenant failed to timely deliver a Move-In Report assessing the
    condition of the premises, the property would be deemed to be free of damages. The lease had an
    original expiration date of January 31, 2010. On February 1, 2010, the Rodriguezes and Shamrock
    entered into a lease extension, changing the expiration date to June 30, 2010. At some point,
    Shamrock transferred management responsibility to another company, which subsequently
    transferred management to A-TX. In August 2010, the Rodriguezes moved out, and a dispute arose
    regarding the refund of the security deposit. A-TX provided an itemized list of charges made against
    the security deposit and refunded the balance of $54.92. The Rodriguezes contended that A-TX
    wrongfully withheld the security deposit.
    The Rodriguezes filed a claim in small claims court, and a default judgment was
    rendered in their favor in the amount of $2,770. After the small claims court denied A-TX’s motion
    for new trial, A-TX appealed to the county court. In a do novo bench trial, the county court heard
    the testimony of the Rodriguezes, A-TX’s office manager, and two A-TX employees who conducted
    property inspections of the Rodriguezes’ home. The parties also offered exhibits including
    photographs, inspection reports, A-TX’s itemized list of charges, invoices for repairs, a letter from
    Shamrock regarding the condition of the house, and the lease. The itemized list included charges
    2
    for replaced blinds, paint, drywall, doorstops, outlet covers, replaced sheetrock, painting of the whole
    house, trimming of bushes, ant care, replaced smoke detectors and light bulbs, pest control for
    roaches, and two $100 charges for holdover rent.
    Sandra testified generally regarding the condition of the home when she and Jesus
    moved in and when they moved out. She offered into evidence a letter from Shamrock dated
    May 2011 stating that when a Shamrock representative took the Rodriguezes to see the house, they
    discovered that it had been vandalized and “the window had been broken[, . . .] there were holes
    punched in the walls and other damage.” Sandra further testified that there were roaches in the home
    when they moved in and they battled them the entire time they lived there. She offered two
    photographs of a shrub near the front door—one taken when they moved out and the second one
    taken one month later—and stated that the shrub looked the same one month later as when they
    moved out and did not appear to have been trimmed. She stated that there was damaged sheetrock
    caused by a leak behind the washer in a pipe for which Shamrock was responsible and Shamrock had
    pulled the sheetrock out and provided a metal vent to cover the hole. Sandra also stated she had
    removed a smoke detector and did not contest that charge. She testified that there were broken
    blinds, so they purchased new blinds and left them in the house but did not hang them. She further
    testified that she had the carpet professionally cleaned when they moved out but that some red stains
    from her daughter’s spilled Kool-Aid remained and she did not dispute that additional cleaning was
    needed. She also testified that she received a refund check from A-TX in the amount of $54 but did
    not cash it and received a subsequent accounting indicating that the Rodriguezes owed A-TX money.
    3
    On cross-examination, Sandra testified that she and Jesus had completed a Move-In
    Report and provided it to Shamrock in compliance with the lease but did not retain a copy. She also
    testified that one plank in the fence had been blown down by the wind. She stated that despite a
    letter from A-TX indicating that the two charges for holding over two months after the expiration
    of the lease were refunded, she did not receive a refund of those amounts.
    Jesus testified that during the inspection A-TX performed before he and Sandra
    moved out, he informed Sean Smith, one of the inspectors, that they had asked Shamrock to repair
    the fence because the wind repeatedly blew a board down, but Shamrock did not repair it. He also
    testified that Shamrock had provided a letter stating that the house had not been painted since 2006,
    but he did not offer the letter into evidence. Although Jesus did not testify regarding the vandalism,
    A-TX offered a letter he wrote to them stating that there was writing on the walls and eggs had been
    thrown on the walls.
    Sean Smith testified concerning the inspection he conducted prior to the Rodriguezes’
    moving out. He stated that the carpet was in “bad shape” and had red, yellow, and black stains and
    the walls were “very bad” and had spots “like when you rub the walls with your hands.” He testified
    that Jesus informed him “it was from eggs, but, I mean, from what proof.” He stated that he had not
    been in the house prior to conducting the inspection. Smith also testified that there was bird feces
    on the carpet and wall next to the bird cage. A-TX offered Smith’s inspection report that indicated,
    and Smith testified, that he had rated the carpet as “fair” and the walls as “fair” and “poor.” The
    report also reflected Smith’s comment that the carpet had “minor spots” and the fence needed to
    be repaired.
    4
    Harold Croson testified regarding the final inspection that he conducted after the
    Rodriguezes moved out. He stated that the carpet and walls were in poor condition, there was “a
    little dirt around,” and live insects. He also stated that the condition of the walls was “more than
    normal wear and tear” but observed that the upstairs was “not as bad.” Croson also testified that
    there were “about three blinds [that] needed to be replaced” and there were new blinds in packages
    but not hung and he was not sure they were the right size. He testified that Jesus “had the
    neighborhood child come over while [he] was there and cut the yard” even though he had given up
    possession of the property at that time. A-TX offered Croson’s inspection report, which generally
    reflected the comments in his testimony, including that the carpet needed stains removed.
    Jessica Bullock testified that she was office manager and vice-president of A-TX.
    She stated that she had unsuccessfully attempted to locate the Move-In Report from Shamrock. She
    explained that Shamrock informed her that it had transferred all of its records to the subsequent
    property manager, who then informed her that it had transferred all of the records to A-TX. Bullock
    testified that the lease required her to go by the Move-In Report and that without it the Rodriguezes
    had offered no proof of the condition at the time they moved in. She further testified that the cost
    to “paint the entire house and fix everything” was $1,200 and she divided that between the owner
    and the tenants. The county court questioned Bullock concerning an invoice A-TX offered into
    evidence that stated: “Repainted rooms due to extensive marks, damages. Replaced sheetrock,
    replaced door stops, repainted baseboards from extensive nicks and damages” for a total charge of
    $600. Bullock stated it was not her understanding that the cost was only $600 and added that some
    5
    follow-up work had to be done but did not refer to another invoice. Bullock also testified that A-TX
    did a lot of work that was not charged to the Rodriguezes because it was normal wear and tear.
    Following testimony, the county court found that A-TX was entitled to deduct for the
    labor of installing the blinds and for replacing the smoke detector, doorstops, and outlet covers for
    a total of $80.96 and that the remaining $1,119.04 should have been refunded. The county court
    further found that A-TX had failed to prove that the Rodriguezes caused the remainder of the
    damages charged against them and concluded that A-TX’s withholding of the security deposit
    without any evidence that the Rodriguezes caused the damages was bad faith. The county court
    awarded $100 and three times the amount wrongfully withheld, for a total of $3,457.12. See 
    id. This appeal
    followed.
    DISCUSSION
    Applicable Law
    The return of security deposits in connection with residential tenancies is governed
    by subchapter C of Chapter 92 of the Property Code. See 
    id. §§ 92.101–.109.
    Under subchapter C,
    a landlord is required to refund a security deposit to a tenant within 30 days after the tenant
    surrenders the property, 
    id. § 92.103(a),
    and may deduct only those “damages and charges for which
    the tenant is legally liable,” 
    id. §92.104(a). If
    a landlord violates this provision in bad faith, the
    statute provides a remedy of three times the amount wrongfully withheld, $100, and attorney’s fees.
    
    Id. § 92.109(a).2
    “A landlord acts in bad faith when he retains the security deposit in dishonest
    2
    The county court did not award attorney’s fees, and the Rodriguezes do not raise that issue
    on appeal.
    6
    disregard of the tenant’s rights.” Pulley v. Milberger, 
    198 S.W.3d 418
    , 428 (Tex. App.—Dallas,
    2006, pet. denied) (citing Reed v. Ford, 
    760 S.W.2d 26
    , 30 (Tex. App.—Dallas 1988, no writ)). Bad
    faith implies an intent to deprive the tenant of a refund that is lawfully due. Shamoun v. Shough,
    
    377 S.W.3d 63
    , 72 (Tex. App.—Dallas 2012, pet. denied); 
    Pulley, 198 S.W.3d at 428
    ; Hardy
    v. 11702 Memorial, Ltd., 
    176 S.W.3d 266
    , 271 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d).
    It is the landlord’s burden to prove that the retention of the security deposit was reasonable. Tex.
    Prop. Code § 92.109(c).
    Standard of Review
    A-TX challenges the legal and factual sufficiency of the evidence to support the
    county court’s judgment. In reviewing the legal sufficiency of the evidence, we view the evidence
    in the light most favorable to the judgment, crediting favorable evidence if a reasonable fact finder
    could and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller
    v. Wilson, 
    168 S.W.3d 802
    , 807 (Tex. 2005). A legal sufficiency challenge may be sustained when
    the record discloses one of the following situations: (i) a complete absence of evidence of a vital
    fact; (ii) the court is barred by rules of law or of evidence from giving weight to the only evidence
    offered to prove a vital fact; (iii) the evidence offered to prove a vital fact is no more than a mere
    scintilla; or (iv) the evidence establishes conclusively the opposite of the vital fact. 
    Id. at 810.
    The
    test is “whether the evidence at trial would enable reasonable and fair-minded people to reach the
    [judgment] under review.” 
    Id. at 827.
    In reviewing factual sufficiency of the evidence, we consider
    and weigh all of the evidence in the record, and we may overturn a judgment only if it is so against
    7
    the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
    Cain v. Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986).
    In a bench trial, the trial judge passes on the witnesses’ credibility and the weight to
    be given their testimony and can accept or reject any witness’s testimony in whole or in part.
    Bocquet v. Herring, 
    972 S.W.2d 19
    , 22 (Tex. 1998). The trial court may believe one witness,
    disbelieve others, and resolve inconsistencies in any witness’s testimony. McGalliard v. Kuhlmann,
    
    722 S.W.2d 694
    , 697 (Tex. 1986) (Baker, J. dissenting) (citing Texas W. Oil & Gas Corp. v. El Paso
    Gas Trans. Co., 
    631 S.W.2d 521
    , 524 (Tex. App.—El Paso 1982, writ ref’d n.r.e.); Seasha Pools,
    Inc. v. Hardister, 
    391 S.W.3d 635
    , 639 (Tex. App.—Austin 2012, no pet.). We may not substitute
    our judgment for that of the trier of fact merely because we reach a different conclusion. Herbert
    v. Herbert, 
    754 S.W.2d 141
    , 144 (Tex. 1988); Westech Eng’g, Inc. v. Clearwater Constructors, Inc.,
    
    835 S.W.2d 190
    , 196 (Tex. App.—Austin 1992, no writ).
    Legal Sufficiency of the Evidence
    In its first issue, A-TX contends that the evidence was legally insufficient to support
    the county court’s judgment. A-TX argues that the contractual obligation of the Rodriguezes to
    provide a Move-In Report is necessary contextual evidence that we are required to consider under
    City of Keller, even though it is not favorable to the county court’s judgment. 
    See 168 S.W.3d at 811
    (review of contrary contextual evidence may be necessary to discern lack of supporting evidence).
    In light of the lease obligation to provide the Move-In Report, A-TX contends, the Rodriguezes’
    claim that A-TX withheld their deposit is no evidence of the unreasonableness of the charges or that
    8
    such charges were made in bad faith. A-TX also cites Sandra’s admission that she was responsible
    for certain damages.
    Initially, we observe that in City of Keller, the supreme court clarified that we are to
    disregard contrary evidence only when a reasonable factfinder could do so. See 
    id. In any
    event, we
    do not construe the contractual obligation to report prior damages in a Move-In Report as evidence
    contrary to the county court’s judgment. Sandra testified that she and Jesus completed the Move-In
    Report and provided it to Shamrock. In addition, Sandra and Jesus offered testimony and evidence
    regarding the damages to the home prior to move-in and the charges A-TX made against the deposit.
    Smith testified that Jesus informed him that there was damage to the walls from eggs. Shamrock’s
    letter describing vandalism at the home when it was shown to the Rodriguezes supports the
    Rodriguezes’ testimony.
    Further, in arguing that the Rodriguezes failed to prove that the charges were
    unreasonable, A-TX inverts the burden of proof with regard to the reasonableness of charges
    assessed by A-TX. Under section 92.109(c), A-TX had the burden to prove that the charges
    underlying its retention of the security deposit were reasonable. See Tex. Prop. Code § 92.109(c);
    see also 
    Hardy, 176 S.W.3d at 273
    (question under section 92.109(a) is whether landlord proved
    each charge was made in good faith). The only evidence A-TX cites to support the reasonableness
    of the charges against the deposit was the lease provision requiring a Move-In Report. A-TX
    contends that in the absence of such a report, A-TX was entitled under the lease to presume there
    was no damage to the property when the Rodriguezes moved in. However, A-TX offered no
    evidence to establish the condition of the home when the Rodriguezes moved in or that the
    9
    Rodriguezes caused the damage, evidence necessary to meet its burden of proving the reasonableness
    of charging the Rodriguezes for repair work. See Tex. Prop. Code § 92.109(c); 
    Hardy, 176 S.W.3d at 273
    ; 
    Shamoun, 377 S.W.3d at 74
    . Nor did it offer any evidence to contradict Sandra’s testimony
    that she and Jesus provided the Move-In Report, the Rodriguezes’ testimony regarding the
    pre-move-in vandalism and other causes of damage, or the Shamrock letter supporting their
    testimony. The county court, acting as factfinder, was the sole judge of the credibility of the
    witnesses and the weight to be given to their testimony and could have reasonably believed the
    Rodriguezes’ testimony, especially in light of the Shamrock letter. 
    McGalliard, 722 S.W.2d at 696
    ;
    Seasha 
    Pools, 391 S.W.3d at 639
    .
    Viewing the evidence in the light most favorable to the county court’s judgment, we
    conclude that there was legally sufficient evidence to support the county court’s determination that
    the charges A-TX assessed against the Rodriguezes3 were unreasonable—with one exception. See
    City of 
    Keller, 168 S.W.3d at 807
    ; Miro v. Garner, 
    52 S.W.3d 407
    , 411 (Tex. App.—Corpus Christi
    2001, pet. denied) (evidence legally sufficient to support finding that landlord wrongfully retained
    deposit where there was no evidence extensive damage was fault of tenant); cf. 
    Pulley, 198 S.W.3d at 422
    , 432 (evidence of no damage prior to move-in and installation of new carpet several months
    prior to move-in sufficient to support finding of reasonableness of charges). Contrary to her
    testimony regarding the other charges, Sandra testified that her daughter had caused the
    3
    The Rodriguezes do not complain on appeal of the county court’s determination that the
    charges for installing the blinds and replacing the smoke detector, doorstops, and outlet covers were
    reasonable, and we reach no conclusion as to the evidence to support that determination. See Tex.
    R. App. P. 47.1.
    10
    hard-to-remove red stains, and she did not dispute the charge for carpet cleaning. We therefore
    conclude that the evidence conclusively establishes that the Rodriguezes caused the stains and was
    legally insufficient to support the county court’s determination that the $107.71 charge for carpet
    cleaning was unreasonable. See City of 
    Keller, 168 S.W.3d at 807
    .
    We further conclude—with the same exception for the carpet cleaning charge— that
    the evidence was legally sufficient to support the county court’s determination that A-TX wrongfully
    withheld the security deposit. Moreover, the lack of evidence of the condition of the home at
    move-in or proof that the Rodriguezes caused the damages was sufficient to support the county
    court’s finding of bad faith. See Tex. Prop. Code § 92.109(d) (presumption of bad faith); City of
    
    Keller, 168 S.W.3d at 807
    ; 
    Miro, 52 S.W.3d at 410
    –11 (evidence legally sufficient to support finding
    of bad faith where no evidence damages caused by tenant); see also 
    Hardy, 176 S.W.3d at 275
    (bad
    faith found where no more than scintilla of evidence landlord was entitled to deductions from
    security deposit). A-TX, a professional management company, relied solely on the absence of
    documentation from its own twice-transferred records, attempted to place the burden on the
    Rodriguezes to prove that they had not caused the damages, and then disregarded the statements of
    the Rodriguezes and Shamrock regarding the Move-In Report and vandalism to the home. A-TX
    thus failed to establish that the home was not damaged prior to the Rodriguezes’ moving in, that it
    had reason to believe the Rodriguezes caused the damage, and that it was entitled to retain the
    deposit. Cf. 
    Pulley, 198 S.W.3d at 431
    (no bad faith where evidence showed amateur landlord
    believed he was entitled to retain portion of deposit for extensive damages caused by tenant);
    Leskinen v. Burford, 
    892 S.W.2d 135
    , 138 (Tex. App.—Houston [14th Dist.] 1994, no writ) (no bad
    11
    faith where evidence showed amateur landlord believed he was entitled to retain portion of deposit
    for damages he believed tenant caused and made many repairs himself to save money). We sustain
    A-TX’s first issue as to the charge for carpet cleaning and overrule it as to the remainder of
    the charges.
    Factual Sufficiency of the Evidence
    In its second issue, A-TX argues that the evidence was factually insufficient to
    support the county court’s judgment. As evidence of the reasonableness of the charges, A-TX cites
    to the testimony of Smith, Croson, and Bullock regarding the damage to the home, repairs that were
    done, photographs admitted as exhibits, and the lease. Again, A-TX inverts the burden of proof and
    argues that the Rodriguezes produced no evidence that the charges were unreasonable. See Tex.
    Prop. Code § 92.109(c). A-TX further contends that “the only relevant piece of evidence” the
    Rodriguezes offered was the Shamrock letter, which is “irrelevant” in light of the lease provision
    requiring the Move-In Report. Finally, A-TX argues that its failure to establish the condition of the
    home prior to move-in is irrelevant because of the Rodriguezes’ obligation to report conditions in
    the Move-In Report.
    Having concluded that the evidence was legally insufficient to support the county
    court’s finding as to the charge for carpet cleaning, we also conclude that the evidence was factually
    insufficient. See 
    Cain, 709 S.W.2d at 176
    . As to the county court’s determination regarding the
    remainder of the damages, we disagree with A-TX’s assertion that the lease provision regarding the
    Move-In Report renders irrelevant its statutory burden under section 92.109(c) to prove the
    reasonableness of the charges. See Tex. Prop. Code § 92.109(c); 
    Pulley, 198 S.W.3d at 426
    .
    12
    Assuming without deciding that A-TX could have reasonably charged the Rodriguezes for all of the
    repairs had the Rodriguezes failed to complete a Move-In Report, A-TX did not establish that they
    failed to submit the report. Rather, the uncontroverted testimony was that they did submit the report,
    and A-TX offered no evidence to rebut that testimony. Nor did it establish the condition of the home
    at move-in or that the Rodriguezes caused the damages. Considering the entire record, we hold that,
    except as to the charge for carpet cleaning, the evidence was factually sufficient to support the county
    court’s determination that the charges A-TX assessed against the Rodriguezes were unreasonable
    and that A-TX wrongfully withheld the security deposit. We further hold that the lack of evidence
    of the condition of the home at move-in or proof that the Rodriguezes caused the damages was
    factually sufficient to support the county court’s finding of bad faith. See Tex. Prop. Code
    § 92.109(d); 
    Cain, 709 S.W.2d at 176
    ; 
    Hardy, 176 S.W.3d at 275
    (bad faith established where
    evidence did not support charges deducted from security deposit); 
    Miro, 52 S.W.3d at 410
    –11
    (evidence factually sufficient to support finding of bad faith where no evidence damages caused by
    tenant). We sustain A-TX’s second issue as to the charge for carpet cleaning and overrule it as to
    the remainder of the charges.
    Amount of Damages
    In its third issue, A-TX argues that the damage award was excessive and seeks
    remittitur on three grounds. First, A-TX argues that the county court erred in including the $54.92
    A-TX refunded in its calculation of treble damages and seeks remittitur in the amount of $164.76.
    A-TX also contends that because the evidence was factually insufficient to support the county court’s
    determination that the $107.17 charge for carpet cleaning was unreasonable, the county court erred
    13
    in including that amount in calculating treble damages and seeks remittitur in the amount of $321.15
    based on that charge. Finally, A-TX argues that there was no evidence to support the statutory award
    of triple damages as to any of the charges because there was no evidence of bad faith.
    We analyze a complaint of excessive damages using the same standard of
    review applicable to other factual sufficiency challenges. Maritime Overseas Corp. v. Ellis,
    
    971 S.W.2d 402
    , 406 (Tex. 1998); Memon v. Shaikh, 
    401 S.W.3d 407
    , 417, (Tex. App.—Houston
    [14th Dist.] 2013, no pet.). A court of appeals may exercise its power to suggest a remittitur when
    an appellant complains that there is insufficient evidence to support an award and the court
    of appeals agrees but finds that there is sufficient evidence to support a lesser award. Tex. R.
    App. P. 46.3; Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp.,
    
    299 S.W.3d 106
    , 123–24 (Tex. 2009); Bechtel Corp. v. CITGO Prods. Pipeline Co., 
    271 S.W.3d 898
    , 922 (Tex. App.—Austin 2008, no pet.).
    In this case, the evidence is factually sufficient to support an award including the
    amount purportedly refunded. Sandra’s uncontroverted testimony was that she received the refund
    check but did not cash it and later received an accounting indicating that the Rodriguezes owed
    A-TX money. We overrule A-TX’s third issue as to the alleged refund amount. Further, as we have
    already determined, the evidence is also factually sufficient to support a finding of bad faith, which
    in turn supports an award of treble damages. See Tex. Prop. Code § 92.109(a). However, for the
    reasons discussed above, we agree with A-TX that the evidence is factually insufficient to support
    the county court’s finding that the charge for carpet cleaning was unreasonable. Consequently, the
    evidence is factually insufficient to support the county court’s finding of bad faith as to that charge
    14
    or its inclusion of that charge in the calculation of treble damages. See 
    id. (landlord who
    retains
    security deposit in bad faith liable for $100 plus “three times the portion of the deposit wrongfully
    withheld”) (emphasis added). We therefore sustain A-TX’s third issue as to the portion of the treble
    damages awarded that was based on the $107.17 charge for carpet cleaning and overrule it as to the
    remainder of the damage award.
    CONCLUSION
    We affirm the county court’s judgment conditioned on the Rodriguezes’ filing a
    remittitur in the county court within thirty days of the date of this opinion, reducing the award of
    damages by an amount equal to three times the charge for carpet cleaning, or $321.51, and notifying
    this Court of the filing. See Tex. R. App. P. 46.3; Swinnea v. ERI Consulting Eng’rs, Inc.,
    
    364 S.W.3d 421
    , 422 (Tex. App.—Tyler 2012, pet. denied) (suggesting remittitur of award for lost
    profits where evidence was factually insufficient to support award); Springs Window Fashions Div.,
    Inc. v. Blind Maker, Inc., 
    184 S.W.3d 840
    , 889–90 (Tex. App.—Austin 2006, pet. granted, judgm’t
    vacated w.r.m.) (suggesting remittitur of difference between jury’s award and highest amount of
    damages supported by evidence). If the remittitur is filed within thirty days of the date of this
    opinion, we will reform the county court’s judgment and affirm as reformed. Otherwise, we will
    reverse the county court’s judgment and remand this cause for redetermination of treble damages.
    See Tex. R. App. P. 46.3.
    15
    __________________________________________
    Melissa Goodwin, Justice
    Before Chief Justice Jones, Justices Rose and Goodwin
    Affirmed Conditioned on Remittitur
    Filed: October 17, 2013
    16