Opinion issued April 30, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00094-CV ——————————— BYRON ROBINSON, Appellant V. ELIZABETH SHELTON, Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1039938
MEMORANDUM OPINION
In this eviction case, Byron Robinson appeals a county court’s order that he
had no right to continue to occupy a duplex that he had leased from his landlord,
Elizabeth Shelton. On appeal, Robinson contends that the evidence is insufficient to establish either that Shelton had a superior right of possession or that she failed
to give him proper notice to vacate the premises. Finding no error, we affirm.
Background
In November 2012, Robinson entered into a residential lease of the lower
level of a duplex in Houston. The lease term expired in October 2014 and required
$800 monthly in rent. Under the agreement, Shelton could terminate the lease if
the tenant failed to pay all amounts due, provided that she gave notice to Robinson
to vacate the leased premises.
The landlord-tenant relationship was a rocky one almost from the outset,
with disputes about repairs and Shelton’s access to the leased premises. After
Robinson did not pay rent in September and October 2013, Shelton sued him in
justice court, seeking to evict him from the premises. In November 2013, the
justice court ruled for Shelton.
Robinson appealed the justice court’s ruling to the county court at law.
There, Robinson did not contest that he had failed to pay rent in October 2013, but
denied Shelton’s non-payment claim for September 2013. The county court
rendered judgment in favor of Shelton, awarding damages of $800.
2 Discussion
Robinson challenges the evidentiary sufficiency of the trial court’s implied
findings that he breached the leased agreement and that he received proper notice
Standard of Review
In an appeal from a bench trial, we review a trial court’s findings of fact
under the same legal and factual sufficiency of the evidence standards used when
determining if sufficient evidence exists to support an answer to a jury question.
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a trial court issues
no findings of fact, we imply that the trial court made all the necessary findings to
support its judgment. Douglas v. Petroleum Wholesale, Inc., 190 S.W.3d 97, 99
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Roberson v. Robinson, 768
S.W.2d 280, 281 (Tex. 1989)). The trial court judges the credibility of the
witnesses, determines the weight of testimony, and resolves conflicts and
inconsistencies in the testimony. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488,
493 (Tex. App.—Houston [1st Dist.] 1992, writ denied). If the evidence falls
“within the zone of reasonable disagreement,” we will not substitute our judgment
for that of the fact finder. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005).
3 In determining whether legally sufficient evidence supports the finding
under review, we consider evidence favorable to the finding, if a reasonable fact
finder could consider it, and disregard evidence contrary to the finding, unless a
reasonable fact finder could not disregard it. Id. at 827. In a factual sufficiency
review, we view all of the evidence in a neutral light and set aside the finding only
if the finding is so contrary to the overwhelming weight of the evidence such that it
is clearly wrong and unjust. Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442,
445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
We review a trial court’s construction of an unambiguous contract de novo.
MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex.
1999). Contract terms will be given their plain, ordinary, and generally accepted
meanings, unless the contract indicates a technical or different sense. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005).
A. Breach of the Lease Agreement
Robinson challenges the legal and factual sufficiency of the evidence
supporting the county court’s judgment that Shelton had a superior right of
possession of the leased property. Their agreement provided that, if Robinson
failed to pay any amount due under the lease, then Shelton could terminate his
right to occupy the leased property upon providing a notice to vacate. Shelton
presented evidence that Robinson did not pay rent in October 2013, and Robinson
4 did not contest that non-payment. Robinson instead pleaded an affirmative defense
that Shelton had breached the lease through wrongful eviction, and contested
whether the notice to vacate the premises was proper. He did not, however, adduce
evidence at trial that a wrongful eviction had occurred or that Shelton’s conduct
had released him from his obligation to pay rent under the lease. Because a
reasonable fact finder could credit the evidence presented supporting a finding of
non-payment of rent, we hold that legally sufficient evidence supports the court’s
ruling. See Keller, 168 S.W.3d at 827; Valence, 164 S.W.3d at 662.
In reviewing the factual sufficiency of the evidence, we consider whether the
trial court’s finding was against the great weight and preponderance of the
evidence. See Plas–Tex, 772 S.W.2d at 445. The lease provided that Shelton
could terminate Robinson’s right to occupy the leased property if Robinson did not
make timely payments under the lease. Robinson did not contest Shelton’s
testimony that he had not paid rent for the month of October 2013 and did not
adduce evidence supporting his affirmative defense. We hold that the evidence
supporting the county court’s finding was factually sufficient. See id.
B. Notice to Vacate the Leased Premises
Robinson challenges whether Shelton sufficiently proved that he received
proper notice to vacate the premises. Pursuant to the Texas Property Code, a
person entitled to possession of a property “must comply with the requirements for
5 notice to vacate under Section 24.005.” TEX. PROP. CODE ANN. § 24.002(b) (West
2013). Section 24.005 provides, “If the occupant is a tenant under a written
lease . . . the landlord must give a tenant who defaults . . . at least three days’
written notice to vacate the premises before the landlord files a forcible detainer
suit, unless the parties have contracted for a shorter . . . period in a written
lease . . . .” Id. § 24.005(a). A notice to vacate “shall be given in person or by
mail at the premises.” Id. § 24.005(f). If notice is given in person, a landlord may
deliver it “by personal delivery to the tenant or . . .
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Opinion issued April 30, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00094-CV ——————————— BYRON ROBINSON, Appellant V. ELIZABETH SHELTON, Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1039938
MEMORANDUM OPINION
In this eviction case, Byron Robinson appeals a county court’s order that he
had no right to continue to occupy a duplex that he had leased from his landlord,
Elizabeth Shelton. On appeal, Robinson contends that the evidence is insufficient to establish either that Shelton had a superior right of possession or that she failed
to give him proper notice to vacate the premises. Finding no error, we affirm.
Background
In November 2012, Robinson entered into a residential lease of the lower
level of a duplex in Houston. The lease term expired in October 2014 and required
$800 monthly in rent. Under the agreement, Shelton could terminate the lease if
the tenant failed to pay all amounts due, provided that she gave notice to Robinson
to vacate the leased premises.
The landlord-tenant relationship was a rocky one almost from the outset,
with disputes about repairs and Shelton’s access to the leased premises. After
Robinson did not pay rent in September and October 2013, Shelton sued him in
justice court, seeking to evict him from the premises. In November 2013, the
justice court ruled for Shelton.
Robinson appealed the justice court’s ruling to the county court at law.
There, Robinson did not contest that he had failed to pay rent in October 2013, but
denied Shelton’s non-payment claim for September 2013. The county court
rendered judgment in favor of Shelton, awarding damages of $800.
2 Discussion
Robinson challenges the evidentiary sufficiency of the trial court’s implied
findings that he breached the leased agreement and that he received proper notice
Standard of Review
In an appeal from a bench trial, we review a trial court’s findings of fact
under the same legal and factual sufficiency of the evidence standards used when
determining if sufficient evidence exists to support an answer to a jury question.
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a trial court issues
no findings of fact, we imply that the trial court made all the necessary findings to
support its judgment. Douglas v. Petroleum Wholesale, Inc., 190 S.W.3d 97, 99
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Roberson v. Robinson, 768
S.W.2d 280, 281 (Tex. 1989)). The trial court judges the credibility of the
witnesses, determines the weight of testimony, and resolves conflicts and
inconsistencies in the testimony. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488,
493 (Tex. App.—Houston [1st Dist.] 1992, writ denied). If the evidence falls
“within the zone of reasonable disagreement,” we will not substitute our judgment
for that of the fact finder. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005).
3 In determining whether legally sufficient evidence supports the finding
under review, we consider evidence favorable to the finding, if a reasonable fact
finder could consider it, and disregard evidence contrary to the finding, unless a
reasonable fact finder could not disregard it. Id. at 827. In a factual sufficiency
review, we view all of the evidence in a neutral light and set aside the finding only
if the finding is so contrary to the overwhelming weight of the evidence such that it
is clearly wrong and unjust. Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442,
445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
We review a trial court’s construction of an unambiguous contract de novo.
MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex.
1999). Contract terms will be given their plain, ordinary, and generally accepted
meanings, unless the contract indicates a technical or different sense. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005).
A. Breach of the Lease Agreement
Robinson challenges the legal and factual sufficiency of the evidence
supporting the county court’s judgment that Shelton had a superior right of
possession of the leased property. Their agreement provided that, if Robinson
failed to pay any amount due under the lease, then Shelton could terminate his
right to occupy the leased property upon providing a notice to vacate. Shelton
presented evidence that Robinson did not pay rent in October 2013, and Robinson
4 did not contest that non-payment. Robinson instead pleaded an affirmative defense
that Shelton had breached the lease through wrongful eviction, and contested
whether the notice to vacate the premises was proper. He did not, however, adduce
evidence at trial that a wrongful eviction had occurred or that Shelton’s conduct
had released him from his obligation to pay rent under the lease. Because a
reasonable fact finder could credit the evidence presented supporting a finding of
non-payment of rent, we hold that legally sufficient evidence supports the court’s
ruling. See Keller, 168 S.W.3d at 827; Valence, 164 S.W.3d at 662.
In reviewing the factual sufficiency of the evidence, we consider whether the
trial court’s finding was against the great weight and preponderance of the
evidence. See Plas–Tex, 772 S.W.2d at 445. The lease provided that Shelton
could terminate Robinson’s right to occupy the leased property if Robinson did not
make timely payments under the lease. Robinson did not contest Shelton’s
testimony that he had not paid rent for the month of October 2013 and did not
adduce evidence supporting his affirmative defense. We hold that the evidence
supporting the county court’s finding was factually sufficient. See id.
B. Notice to Vacate the Leased Premises
Robinson challenges whether Shelton sufficiently proved that he received
proper notice to vacate the premises. Pursuant to the Texas Property Code, a
person entitled to possession of a property “must comply with the requirements for
5 notice to vacate under Section 24.005.” TEX. PROP. CODE ANN. § 24.002(b) (West
2013). Section 24.005 provides, “If the occupant is a tenant under a written
lease . . . the landlord must give a tenant who defaults . . . at least three days’
written notice to vacate the premises before the landlord files a forcible detainer
suit, unless the parties have contracted for a shorter . . . period in a written
lease . . . .” Id. § 24.005(a). A notice to vacate “shall be given in person or by
mail at the premises.” Id. § 24.005(f). If notice is given in person, a landlord may
deliver it “by personal delivery to the tenant or . . . to the premises and affix[] the
notice to the inside of the main entry door.” Id.
In the trial at the county court, Shelton identified a copy of her notice to
Robinson to vacate the premises. She further testified that she paid to have the
notice served on Robinson. The court admitted the copy into evidence, overruling
Robinson’s hearsay objection. The notice was addressed to Robinson, and it was
signed by a person who purported to have served the notice by affixing it on the
door of the leased premises. At trial, Shelton also authenticated a receipt, showing
payment for service of the notice, and the court admitted the receipt into evidence.
Robinson did not object to its admission. On appeal, Robinson he does not raise
any argument regarding the admissibility of the notice other than to state that the
county court abused its discretion in admitting it. Without argument or citation to
authority, any admissibility argument is waived. See TEX. R. APP. P. 38.1(i) (“The
6 brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”). Shelton’s testimony that
she served a notice, together with the notice itself and the receipt, are some
evidence from which a factfinder could reasonably conclude that Robinson
received a notice to vacate the premises on his duplex entry door. Thus, we hold
that legally sufficient evidence supports the court’s finding. See Keller, 168
S.W.3d at 827. Similarly, because Robinson adduced no evidence to the contrary,
we hold that the evidence is factually sufficient. See Plas–Tex, 772 S.W.2d at 445.
Conclusion
We affirm the judgment of the county court.
Jane Bland Justice
Panel consists of Justices Keyes, Bland, and Massengale.