Temple B. Page v. Maureen Lorraine Hulse

Affirmed and Memorandum Opinion filed July 26, 2007

Affirmed and Memorandum Opinion filed July 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00731-CV

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TEMPLE B. PAGE, Appellant

V.

MAUREEN LORRAINE HULSE, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2005-40275

M E M O R A N D U M   O P I N I O N

In five issues, appellant Temple B. Page appeals the trial court=s award of damages following his successful claim against appellee Maureen Lorraine Hulse for breach of their lease agreement.^[1] We affirm.

I.  Factual and Procedural Background

Hulse entered into an agreement to lease residential property from Page from August 13, 2004 to August 31, 2005 for $1050 per month.  Hulse vacated the property in January 2005, before the lease expired, and failed to pay the remaining rent due under the agreement from January through August 2005.  The lease provides that a tenant defaults by failing to timely pay Aall amounts due@ or otherwise failing to comply with the lease and that, if the tenant so defaults, Aall unpaid rents which are payable during the remainder of [the] lease . . . will be accelerated without notice or demand.@  Page sued Hulse for breach of the lease agreement, alleging she defaulted on rental payments and failed to give notice of abandonment of the property.  He sought $9091.41 in damages, which is the unpaid rent from January through August 2005 plus various other costs allegedly owed under the lease agreement.

At a bench trial, Hulse conceded she vacated before the lease expired.  However, she maintained that, because the manager of the property and designated contact under the lease, Eric Baumgart, would not respond to her repeated requests for written permission to secure a new tenant to sublease the property for the remainder of the lease, she owed Page only the unpaid rent for January 2005, not the entirety of the unpaid rent.  The lease agreement provided that tenants could not sublease the property without the landlord=s written consent and that the landlord Amay, but is not obligated to, attempt to find a replacement tenant@ upon a request from a tenant who terminates the lease early.  Baumgart testified during direct examination by Page that Hulse never attempted to resolve or settle the damages for breaching the lease. 

In support of her position, during her cross-examination of Baumgart, Hulse offered various letters^[2] and email correspondence exchanged between January and April 2005, in which she and Baumgart discussed arrangements for leasing the property.  In a letter dated January 27, 2005, Hulse informed Baumgart she could no longer afford to lease the property, stated she would Abe moved out by the end of the month,@ and requested permission to find a new tenant to sublet the property.  In email correspondence dated February 12, Hulse informed Baumgart she had vacated the property and sought permission to Arun an ad to get [the property] leased out for $1,050 to cover [her] obligation until August[.]@  In the reply email, which Baumgart recognized as his own, Baumgart stated that because he was out of the country, they could Adiscuss [Hulse=s] mitigation of damages by assisting in the re-leasing of the property@ upon his return the following week.  Hulse testified she thereafter repeatedly attempted to contact Baumgart seeking permission to arrange a sublease, and he never responded.  Moreover, in a letter dated March 17, 2005, Hulse sought confirmation from Baumgart that he had in fact leased the property to a new tenant, explaining that she observed garbage in the property=s garbage cans and other indicators of occupancy.  According to Baumgart, he attempted unsuccessfully to lease the property shortly after Hulse vacated.

The trial court found that Hulse breached the lease and awarded Page actual damages of $1516.41, which represents the sum of the unpaid rent from January and February 2005, late rental fees, and other costs provided for under the lease less an offset for Hulse=s $1050 security deposit that Page did not refund.  The trial court explained in its findings of fact and conclusions of law^[3] that it awarded only the unpaid rent from January and February 2005 because

[Page] mitigated his rental damage or loss caused by [Hulse=s] breach of the lease by re-letting the Property in March of 2005, or [Page] did not mitigate his rental damages or loss caused by [Hulse=s] breach of the lease by using reasonable means in an attempt to re-let the Property and reduce [Hulse=s] liability. 

Page now claims the trial court erred in failing to award the full amount of damages he sought because the court relied on improperly admitted mitigation evidence to reduce the damage award.

II.  Standard of Review

We review a trial court=s decision to admit or exclude evidence for an abuse of discretion.  Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).  A trial court abuses its discretion when it acts Awithout regard for any guiding rules or principles.@ City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).  To obtain reversal of a judgment based on an error in admitting or excluding of evidence, the appellant must show the error probably resulted in an improper judgment.  Interstate Northborough, 66 S.W.3d at 220.

III.  Analysis

In issue one, Page complains the trial court erred in failing to award Aall the damages and relief sought.@  Specifically, he contends he introduced sufficient evidence of damages, that Hulse failed to respond with Aany relevant or admissible evidence . . . sufficient to establish . . . that the damages . . . sought should have been mitigated or reduced,@ and that Hulse Aagreed that the damages sought . . .were appropriate@ because she failed to respond to Page=s requests for admissions.  In issue two, Page contends the court erred in considering Adocuments,@ Hulse=s Atesti[mony],@ and Atestimony from a witness@ that was Ainadmissible and irrelevant as a matter of law@ because Hulse failed to produce such evidence before trial pursuant to his requests for admissions, disclosures, and production. 

Page correctly states that matters in timely filed requests for admission are deemed admitted against a party who fails to timely serve responses and that a party who fails to properly respond to discovery requests generally may not introduce the requested evidence.  See Tex. R. Civ. P. 193.6(a), 198.2(c). Page=s contentions nonetheless fail for several reasons.  First, in his brief, he fails to specify what testimony, documents, or other evidence the trial court improperly admitted and has thus waived this issue for improper briefing.  See Tex. R. App. P. 38.1(h); Garza v. Tex. Alcoholic Beverage Comm=n, 138 S.W.3d 609, 618 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding appellant waived complaint that court improperly admitted testimony and documents untimely produced or disclosed during discovery because he cited only one example of improperly admitted evidence and otherwise failed to specify which evidence was improperly admitted).  Moreover, our record does not contain a copy of Page=s requests for admissions, disclosures, or production.^[4] Without reviewing these requests, we cannot properly determine whether Hulse=s alleged deemed admissions in fact constituted an admission of Page=s requested damages or whether Page in fact requested the information, witnesses, and documents he now generally alleges Hulse failed to disclose and produce.  See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 37 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (noting that historically, burden falls on appellant to provide sufficient record to show reversible error); Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 403B04 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (rejecting appellant=s complaint that trial court improperly admitted evidence of attorney=s fees under Rule 193.6 after appellee failed to disclose such evidence in discovery because record did not contain discovery requests in question and it was unclear whether alleged requests were made).  Finally, a trial court has discretion to admit undisclosed material if it finds no unfair prejudice.  See Tex. R. Civ. P. 193.6(a)(2).  The record indicates Page twice examined Hulse regarding the copies of the correspondence she sent to BaumgartCeliciting her admission that she had no proof Baumgart received the lettersCand otherwise substantially presented his case.  As such, we cannot say Page was unfairly prejudiced by the trial court=s admission of Hulse=s evidence.  See, e.g., Garza, 138 S.W.3d at 618 n.4 (holding appellant was not unfairly prejudiced by admission of untimely disclosed documents because he was afforded ample opportunity to examine records and was able to extensively question witnesses regarding documents).  We overrule issues one and two. 

In issue three, Page contends the trial court erred in considering Hulse=s Aaffirmative defense@ that she had a legal right to find a replacement tenant under the terms of the lease agreement because she filed only a general denial and failed to specifically plead this defense.  In its findings of fact and conclusions of law, the trial court offered the following alternative bases for its decision not to award Page damages for the unpaid rent from March through August 2005:  (1) Page failed to mitigate his damages by using reasonable means to lease the property, namely failing to give Hulse the opportunity to find a new tenant or (2) Page in fact mitigated his damages by leasing the property to a new tenant in March 2005. The first basis constitutes an affirmative defense that a tenant must specifically plead, and we agree Hulse failed to so plead because she filed only a general denial.  See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997) (holding that tenant must plead claim that landlord failed to mitigate damages as affirmative defense). However, the second basis constitutes a rebuttal to the landlord=s claim of damages, which a tenant may properly raise under a general denial.  See id. (holding that tenant=s evidence of landlord=s mitigation tends to rebut measure of damages under landlord=s claim of breach and may be admitted under general denial).  Thus, although Hulse filed only a general denial, the trial court properly admitted evidence tending to rebut Page=s claim of damages for unpaid rent from January to August 2005, namely the March 17, 2005 letter stating Hulse observed signs that the property had been leased.  Because Page does not challenge this independent basis for the trial court=s award of damages, we must affirm the court=s judgment.  See Long v. Long, 196 S.W.3d 460, 468 (Tex. App.CDallas 2006, no pet.) (holding that when separate and independent ground that supports judgment is not challenged on appeal, appellate court must affirm);  Britton v. Tex. Dep=t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (same).  We overrule issue three.

In issue four, Page contends the trial court erred in offsetting the damage award by crediting a security deposit that Page did not refund to Hulse because Hulse failed to raise her entitlement to the security deposit as an affirmative defense or counterclaim.  After the close of evidence, the trial court allowed Hulse and Baumgart to testify about the security deposit, and Page failed to object to their testimony.  Moreover, he failed to raise an objection regarding the security deposit in his post-trial motion to reform the judgment.  Therefore, Page cannot assert this complaint for the first time on appeal.  See Tex. R. App. P. 33.1(a).  We overrule issue four.

In issue five, Page complains the trial court erred in failing to award him the Acosts of litigating this matter pursuant [to] law and Paragraph 29 of the lease agreement.@  Paragraph 29 is entitled AAttorney=s Fees@ and provides that the prevailing party in a legal proceeding brought under the lease is entitled to attorney=s fees and various other litigation costs.  Page failed to object to the court=s failure to award attorney=s fees and costs either during trial or in his post-trial motion to reform the judgment.  As such, he cannot complain about such failure for the first time on appeal.  See id.; In re A.A.F., 120 S.W.3d 517, 519 (Tex. App.CDallas 2003, no pet.) (holding appellant waived complaint that trial court failed to award attorney=s fees because she failed to raise issue during trial or in post-judgment motion).  We overrule issue five.

Having overruled all of Page=s issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed July 26, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.   

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^[1]  Both parties have represented themselves throughout this litigation, including this appeal, but Hulse did not file an appellate brief with this court. 

^[2]  Hulse conceded she did not send any letters to Baumgart by certified mail and that she had no proof he received any of them. Baumgart stated generally that he did not recognize any of the letters.   

^[3]  Page correctly notes in his brief that the trial court untimely filed its findings of fact and conclusions of law.  However, we will not disregard the court=s untimely findings and conclusions because (1) Page does not affirmatively request us to do so or otherwise allege harm from the untimely findings and conclusions, (2) the trial court filed them one week before Page=s deadline for filing his brief to this court, and he failed to request an extension of the deadline to file his brief, and (3) Page included a copy of them in his brief=s appendix, indicating he had an opportunity to review them.  See Silbaugh v. Ramirez, 126 S.W.3d 88, 91B92 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (finding no harm from untimely filed findings and conclusions where neither party alleged harm and neither party requested abatement of appeal); cf. Robles v. Robles, 965 S.W.2d 605, 610B11 (Tex. App.CHouston [1st Dist.] 1998, pet. denied) (finding no harm from untimely filed findings and conclusions because appellant was granted leave to file amended brief addressing untimely findings and conclusions).

^[4]  Our record contains only a document entitled APlaintiff=s Amended Certificate of Discovery on Defendant Maureen Lorraine Hulse,@ which is signed by Page and states that Page served Hulse with two sets of requests for admissions, disclosure, and production.