In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00467-CV ___________________________
DALIA LOPEZ, Appellant
V.
CAMRON R. LAROCHELLE AND CASEY BUTLER, Appellees
On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2023-02962
Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
Appellant Dalia Lopez leased a residence in Little Elm to Appellees Camron R.
Larochelle and Casey Butler. After a dispute arose between the parties concerning
whether Larochelle and Butler had moved out of the residence during the term of the
lease and whether they were entitled to the return of their security deposit, Larochelle
and Butler sued Lopez for violating Section 92.109 of the Texas Property Code, and
Lopez filed a counterclaim for breach of contract. See Tex. Prop. Code Ann. § 92.109.
Larochelle and Butler later moved for a traditional summary judgment based on their
affirmative claim and a no-evidence motion for summary judgment based on Lopez’s
counterclaim. The trial court ultimately granted Larochelle and Butler’s traditional
and no-evidence motions for summary judgment; awarded them $5,200 in damages,
$350 in costs, and $12,462.50 in attorney’s fees; and entered a take-nothing judgment
on Lopez’s counterclaim.
In three issues on appeal, Lopez argues that the trial court erred by (1) granting
Larochelle and Butler’s no-evidence motion for summary judgment, (2) granting
Larochelle and Butler’s traditional motion for summary judgment, and (3) awarding
attorney’s fees to Larochelle and Butler. We will affirm the trial court’s grant of the
no-evidence motion for summary judgment with respect to two aspects of Lopez’s
breach-of-contract counterclaim—her claim that Larochelle and Butler breached the
lease by failing to report health and safety issues to her and her claim that they
2 breached the lease by moving without giving her written notice—but we will reverse
the trial court’s grant of the no-evidence motion with respect to the third aspect of
Lopez’s breach-of-contract counterclaim—her claim that they breached the lease by
failing to pay rent. We will also reverse the trial court’s grant of Larochelle and
Butler’s traditional motion for summary judgment and its award of attorney’s fees.
Accordingly, we will affirm in part and reverse and remand in part.
II. BACKGROUND
A. Factual Background
In December 2021, Larochelle, Butler, and Lopez signed a residential lease
agreement (the Lease). Under the terms of the Lease, Larochelle and Butler agreed to
lease a residence from Lopez in Little Elm (the Property). The term of the Lease
began on January 1, 2022, and ended on December 31, 2023. The monthly rent
required by the Lease was $1,750. The Lease provided that if Larochelle and Butler
vacated the Property before the term of the Lease ended, they would be liable for the
balance of the rent for the remainder of the Lease’s term. It also provided that
Larochelle and Butler were to notify Lopez in advance if they were to be away from
the Property for fifteen or more consecutive days. Pursuant to Clause 11 of the
Lease, Larochelle and Butler agreed to notify Lopez of any defects or dangerous
conditions in and about the Property of which they became aware.
The Lease also contained the following provision relating to a security deposit:
3 By signing this Agreement, Tenant will pay to Landlord the sum of $1,750.00 as a security deposit.[1] Tenant may not, without Landlord’s written consent, apply this security deposit to the last month’s rent or to any other sum due under this Agreement. Only 50% of deposit is reimbursable. Within 6 weeks after Tenant has vacated the premises, returned keys, and provided Landlord with a forwarding address, Landlord will give Tenant an itemized written statement of the reason for, and the dollar amount of any of the security deposit retained by Landlord along with a check for any deposit balance. Other 50% is retained by owner to de[e]p clean, repaint[,] and for other necessary repairs to make house ready for the next tenant. Note: to make sure you will receive the 50% of your deposit back, premises should be delivered to landlord in good shape, tenant should remove any unwanted items and furniture, remove all trash[,] and leave the premises . . . clean.
On June 29, 2023, Lopez and Larochelle exchanged a series of text messages
over a six-minute span. It began with Lopez sending a text message to Larochelle
stating, “I stop[ped] by the house today to check the septic tank[,] and [it] looks like
you guys move[d] out! Please confirm.” Larochelle responded, “We still have
personal property in the house.” Lopez replied, “[C]all me.” Larochelle responded,
“Busy.” Lopez messaged, “[Y]ou are moving[?] [C]onfirm date and time.”
Larochelle answered, “I am supposed to deal with Mrs. Fincher[2] now. We are not
moved out[;] nothing has changed at this point.” Lopez replied, “[I] will take
1 In affidavits attached to their amended motions for summary judgment, Larochelle and Butler stated, “[W]e paid a $1,750.00 security deposit at the initiation of [the Lease].” 2 From what we can glean from the record, Alexandra Fincher was Lopez’s agent who had dealings with the Property.
4 possession of the house on 7/01/2023[.] [Y]ou move[d] without notice[;] you [are]
still liable for [the] remaining rent until [the Lease] expire[s].”
In their affidavits, Larochelle and Butler characterized this exchange as
occurring in the midst of their “moving some of [their] possessions to a home [they]
had just recently purchased, which was not yet ready for occupancy.” They stated that
Lopez “incorrectly believed that [they] were moving out early or had already vacated
the premises[ ] and subsequently terminated [their] rights to possession immediately.”
They also indicated that Lopez had locked them out of the Property without notice,
which prevented them from cleaning the Property.
B. Procedural Background
In August 2023, Larochelle and Butler filed a lawsuit against Lopez. They
claimed that Lopez had violated Section 92.109 of the Texas Property Code by failing
to return their security deposit.3 Larochelle and Butler asked that they be awarded
$5,250 in liquidated damages, $100 in economic damages, and their reasonable
attorney’s fees and costs.
Lopez answered the lawsuit and filed a breach-of-contract counterclaim. Her
counterclaim alleged that Larochelle and Butler had breached the contract by:
3 Larochelle and Butler’s petition included a heading labeled “Breach of Contract.” The substantive section following that heading, however, referred to Lopez’s failure to return the security deposit and referenced a purported violation of Property Code Section 92.109. The parties’ respective briefing treats Larochelle and Butler’s claim as one based on a purported violation of Section 92.109, not as one based on a breach of contract, and we will treat it the same.
5 (1) failing to report health and safety issues to her as required by Clause 11 of the
Lease, (2) moving without giving her written notice, and (3) failing to pay rent.
Larochelle and Butler filed a combined no-evidence motion for summary
judgment and traditional motion for summary judgment. In that combined motion,
Larochelle and Butler argued that (1) there was no evidence to support certain
affirmative defenses raised by Lopez, (2) there was no evidence supporting Lopez’s
counterclaim, (3) Lopez had no evidence to rebut their claims, (4) they were entitled
to three times their security deposit, and (5) they were entitled to their attorney’s fees.
Lopez responded to the motions pro se. Attached as exhibits to Lopez’s
response were her counterclaim; certain pictures of the Property; affidavits from
Lopez and others; a copy of an August 11, 2023 letter she sent to Larochelle and
Butler containing an itemized list of deductions pertaining to their security deposit; a
copy of a warranty deed relating to other real property purchased by Larochelle in
Denton County; and a spreadsheet purporting to reflect certain expenses “incurred by
[Lopez] to remove junk from abandoned house.”
Larochelle and Butler later amended their combined no-evidence and
traditional motion for summary judgment. In their amended combined motion,
Larochelle and Butler advanced the same arguments contained in their original
combined motion—that (1) there was no evidence to support certain affirmative
defenses raised by Lopez, (2) there was no evidence supporting Lopez’s counterclaim,
(3) Lopez had no evidence to rebut their claims, (4) they were entitled to three times
6 their security deposit, and (5) they were entitled to their attorney’s fees. Larochelle
and Butler’s amended motion was set for hearing on June 27, 2024.
On June 25, 2024—two days before the hearing on the amended motion—
Lopez filed her amended pro se response. Larochelle and Butler later moved to strike
Lopez’s amended response because it was untimely. See Tex. R. Civ. P. 166a(c)
(“Except on leave of court, the adverse party, not later than seven days prior to the
day of hearing may file and serve opposing affidavits or other written response.”).
The trial court granted Larochelle and Butler’s motion to strike, and it struck Lopez’s
amended response.
Meanwhile, Larochelle and Butler filed certain objections to the summary-
judgment evidence that was attached to Lopez’s original response. More specifically,
they objected to certain portions of the affidavits attached to her response and to the
pictures attached to her response. At the hearing on Larochelle and Butler’s amended
combined motion for summary judgment, their counsel raised the objections to
Lopez’s summary-judgment evidence, and the trial court stated that it was granting the
objections.4
4 No written order was signed by the trial court regarding Larochelle and Butler’s objections. But the trial court’s oral ruling at the hearing was sufficient. See FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022) (“A trial court’s on-the-record, unequivocal oral ruling on an objection to summary[-]judgment evidence qualifies as a ruling under Texas Rule of Appellate Procedure 33.1, regardless of whether it is reduced to writing.”).
7 Following the hearing, the trial court signed an order granting Larochelle and
Butler’s no-evidence motion for summary judgment and ordering that Lopez take
nothing from them on her counterclaim. The trial court also signed an order granting
Larochelle and Butler’s traditional motion for summary judgment. In that order, the
trial court awarded Larochelle and Butler $5,200 in “actual damages,” $350 in costs,
and $5,902 in attorney’s fees.
Lopez filed a motion for reconsideration, arguing, among other things, that the
trial court had erred by granting Larochelle and Butler’s no-evidence motion for
summary judgment, had erred by granting Larochelle and Butler’s traditional motion
for summary judgment, and had erred by awarding $5,902 in attorney’s fees.5
Larochelle and Butler responded to the motion for reconsideration, and the trial court
conducted a hearing regarding the motion. Following the hearing, the trial court
signed an order in which it granted the motion with respect to the award of attorney’s
fees. In the order, the trial court vacated its previous award of attorney’s fees. The
trial court denied the motion for reconsideration in all other respects.
On September 10, 2024, Larochelle and Butler filed a motion for summary
judgment on their attorney’s fees. On September 16, 2024, the trial court signed an
order granting Larochelle and Butler’s motion for summary judgment on their
5 Lopez had obtained counsel when she moved for reconsideration; the motion was drafted and filed by her counsel.
8 attorney’s fees.6 That order, however, had a blank space for the amount of the fees
awarded by the trial court. On September 30, 2024, the trial court signed a nunc pro
tunc order that awarded Larochelle and Butler attorney’s fees of $12,462.50 plus
conditional appellate attorney’s fees. This appeal followed.
III. DISCUSSION
A. Lopez’s Complaint Regarding the Trial Court’s Grant of the Traditional Motion for Summary Judgment
In her second issue, Lopez argues that the trial court erred by granting
Larochelle and Butler’s traditional motion for summary judgment.7
1. Standard of Review
We review a summary judgment de novo. Weekley Homes, LLC v. Paniagua,
691 S.W.3d 911, 915 (Tex. 2024); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). With respect to a traditional motion for summary judgment, the movant
has the burden to demonstrate that no genuine issue of material fact exists and that it
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.
Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). A plaintiff is entitled to summary
No hearing was conducted on Larochelle and Butler’s motion for summary 6
judgment on their attorney’s fees. 7 In her opening appellate brief, Lopez repeatedly references the “no-evidence summary judgment” when discussing her second issue, although it appears from the context of her argument that she means to discuss the traditional motion for summary judgment. In her reply brief, Lopez clarifies that her second issue concerns the traditional motion for summary judgment, noting that she “unintentionally substituted ‘no-evidence’ for ‘traditional’” in this part of her opening brief.
9 judgment on a cause of action if he or she conclusively proves all essential elements of
the claim. See Tex. R. Civ. P. 166a(a), (c); Compass Bank v. Durant, 516 S.W.3d 557, 565
(Tex. App.—Fort Worth 2017, pet. denied).
When reviewing a traditional motion for summary judgment, we consider the
evidence presented in the light most favorable to the nonmovant—here, Lopez.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
We credit evidence favorable to the nonmovant if reasonable jurors could, and we
disregard evidence contrary to the nonmovant unless reasonable jurors could not. Id.
We indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
2. Applicable Law
Chapter 92 of the Texas Property Code, Subchapter C, governs the rights of
landlords and tenants concerning security deposits applicable to residential leases. See
Tex. Prop. Code Ann. §§ 92.101–.111; see also Robinson v. Bontha, No. 01-19-00777-CV,
2020 WL 7349508, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.)
(mem. op.) (discussing provisions in Chapter 92, Subchapter C, of the Texas Property
Code). Within that subchapter, under Section 92.103(a), a landlord “shall refund a
security deposit to the tenant on or before the 30th day after the date the tenant
surrenders the premises” except as provided by Section 92.107. Tex. Prop. Code
Ann. § 92.103(a). Notably, Section 92.107(a) provides that a landlord “is not
obligated to return a tenant’s security deposit or give the tenant a written description
10 of damages and charges until the tenant gives the landlord a written statement of the
tenant’s forwarding address for the purpose of refunding the security deposit.” Id.
§ 92.107(a).
Under Section 92.104(a), before returning the security deposit, a landlord “may
deduct from the deposit damages and charges for which the tenant is legally liable
under the lease or as a result of breaching the lease.” Id. § 92.104(a). If the landlord
retains all or a part of a security deposit, the landlord “shall give to the tenant the
balance of the security deposit, if any, together with a written description and itemized
list of all deductions.”8 Id. § 92.104(c). Pursuant to Section 92.109(d), a landlord who
“fails either to return a security deposit or to provide a written description and
itemization of deductions on or before the 30th day after the date the tenant
surrenders possession is presumed to have acted in bad faith.” Id. § 92.109(d). And
“[a] landlord who in bad faith retains a security deposit in violation of [Subchapter C]
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). Section 92.109 is “subject to strict
construction.” Minor v. Adams, 694 S.W.2d 148, 150 (Tex. App.—Houston [14th
Dist.] 1985, no writ).
The landlord is not required to give the tenant a description and itemized list 8
of deductions if the tenant owes rent when he surrenders possession of the premises and there is no controversy concerning the amount of rent owed. Id. § 92.104(c)(1)– (2).
11 3. Analysis
Among other arguments, Lopez contends that the trial court erred by granting
Larochelle and Butler’s traditional motion for summary judgment because they did
not conclusively establish that they gave her a written statement of their forwarding
address as required by Section 92.107(a). See Tex. Prop. Code Ann. § 92.107(a).
Larochelle and Butler respond by arguing that they did provide a written statement of
their forwarding address, pointing to a text message attached to their amended motion
for summary judgment.
In order to obtain traditional summary judgment on their claim that Lopez
violated Section 92.109, Larochelle and Butler must have conclusively established that
they provided Lopez with a written statement of their forwarding address.9 See id.
§§ 92.103(a), .107(a), .109; see also Brand v. Degrate-Greer, No. 02-15-00397-CV, 2017
WL 1756542, at *3 (Tex. App.—Fort Worth May 4, 2017, no pet.) (mem. op. on
reh’g) (recognizing that, “[u]nder the [P]roperty [C]ode, a landlord ‘shall refund a
security deposit to the landlord on or before the 30th day after the date the tenant
surrenders the premises,’” but only “provided that the tenant has given the landlord a
written statement of their forwarding address for purposes of refunding the security
9 In their brief, Larochelle and Butler acknowledge this requirement, stating that “[t]he only thing the tenant has to do to be entitled to the refund of his security deposit and itemized list of damages claimed is to give the landlord written notice of his forwarding address, an act which starts the ‘clock’ running on the landlord’s obligation to refund the deposit.”
12 deposit”); Gluck v. Hadlock, No. 02-09-00411-CV, 2011 WL 944439, at *3 (Tex.
App.—Fort Worth Mar. 17, 2011, no pet.) (mem. op.) (stating that “[a] landlord is
obligated to return a tenant’s security deposit or provide a written description of
damages and charges” but only “once the tenant provides the landlord with a written
statement of the tenant’s forwarding address”).
The text message that Larochelle and Butler point to as evidence that they
provided Lopez with a written statement of their forwarding address does not show
what they claim it does. As a preliminary matter, the text message does not
conclusively establish the sender of the message, nor does it conclusively establish the
recipient of the message. The message provides that it was sent by “Me,” and it
states,
I had the mailbox rekeyed because Dalia kept taking my mail and I was not getting parcels until weeks later, then would show up at my front door unsecured. It’s best if the mailbox key is turned into the post office, but I have no problem giving them to you directly, as soon as I put a hold mail request in the post office.
My email address is: [email address given]
My forwarding address is: Camron Larochelle [Address given]
While it appears from the context of the message that it was written by
Larochelle, there is no evidence—such as affidavit testimony—establishing that
13 Larochelle authored the message.10 More problematic, there is no evidence
establishing that the text message was sent to Lopez. Indeed, the context of the
message seems to indicate that it was not sent to Lopez because it begins by stating, “I
had the mailbox rekeyed because Dalia [i.e., Lopez’s first name] kept taking my mail.”
Further, it is unclear when the message was allegedly sent. To that end, the
message reflects a time and date of “10:10 PM, Jul 1,” but it does not provide what
year the message was allegedly sent. The date the message was sent is important
because—as acknowledged by Larochelle and Butler—providing the landlord with a
written statement of the tenant’s forwarding address “starts the ‘clock’ running on the
landlord’s obligation to refund the deposit.” See Tex. Prop. Code Ann. §§ 92.103(a),
.107(a), .109; Brand, 2017 WL 1756542, at *3; Gluck, 2011 WL 944439, at *3.
Moreover, while the text message purports to show Larochelle’s forwarding address, it
does not purport to show Butler’s forwarding address. See Tex. Prop. Code Ann.
Viewing the evidence presented in the light most favorable to Lopez—the
nonmovant—we hold that Larochelle and Butler did not conclusively establish that
they provided Lopez with a written statement of their forwarding address, a necessary
10 Larochelle filed an affidavit in which he attached “six (6) pages” kept by him “in the regular course of [his] business affairs and communications with [Lopez].” Those six pages included the Lease and the text messages exchanged with Lopez on June 29, 2024. The claimed text message purporting to establish that he provided Lopez with written notice of his forwarding address was the seventh page after his affidavit.
14 element to their claim that Lopez violated Section 92.109.11 See id. §§ 92.103(a),
.107(a), .109; Brand, 2017 WL 1756542, at *3; Gluck, 2011 WL 944439, at *3;
cf. Robinson, 2020 WL 7349508, at *3 (“Because appellants presented evidence that
they vacated the property at the end of the [l]ease term . . . and provided written
notice of their forwarding address, appellants were entitled to the return of their
deposit and an itemized list of any deductions within 30 days.”). We sustain Lopez’s
second issue, and we reverse the trial court’s grant of Larochelle and Butler’s
traditional motion for summary judgment.12
B. Lopez’s Complaint Regarding the Trial Court’s Award of Attorney’s Fees
In her third issue, Lopez argues that the trial court erred by awarding attorney’s
fees to Larochelle and Butler. Because we are reversing the trial court’s grant of
Larochelle and Butler’s traditional motion for summary judgment, we also reverse the
trial court’s award of attorney’s fees based on that grant. See MVP Fort Worth Taylor,
LLC v. Roy, No. 02-23-00060-CV, 2024 WL 3529432, at *6 (Tex. App.—Fort Worth
11 In affidavits attached to their amended summary-judgment motion, Larochelle and Butler stated that they “promptly provided our forwarding address to [Lopez] within the required thirty-day period.” However, that statement does not conclusively establish that they provided Lopez with their forwarding address in writing, a requirement of Section 92.107. See Tex. Prop. Code Ann. § 92.107(a). 12 Because we have determined that Larochelle and Butler did not conclusively establish that they gave Lopez a written statement of their forwarding address—an essential element of their Section 92.109 claim—we need not address Lopez’s other arguments pertaining to the trial court’s grant of their traditional motion for summary judgment. See Tex. R. App. P. 47.1.
15 July 25, 2024, no pet.) (mem. op.) (reversing trial court’s grant of traditional summary
judgment on appellee’s breach-of-contract claim and reversing “the corresponding
award of attorney’s fees”); Harley Rogers P’ship, Ltd. v. Quick Roofing, LLC, No. 04-21-
00030-CV, 2022 WL 2230954, at *5 (Tex. App.—San Antonio June 22, 2022, no pet.)
(mem. op.) (similar). We sustain Lopez’s third issue.
C. Lopez’s Complaint Regarding the Trial Court’s Grant of the No-Evidence Motion for Summary Judgment
In her first issue, Lopez argues that the trial court erred by granting Larochelle
and Butler’s no-evidence motion for summary judgment.
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
no evidence supports an essential element of the nonmovant’s claim or defense. Tex.
R. Civ. P. 166a(i). The motion must specifically state the elements for which no
evidence exists. Id. The Texas Supreme Court has called for strict enforcement of
this requirement. See State v. Three Thousand, Seven Hundred Seventy-Four Dollars and
Twenty-Eight Cents U.S. Currency, 713 S.W.3d 381, 387 (Tex. 2025) (holding that the
Texas Supreme Court requires “strict enforcement” of the rule that a no-evidence
motion for summary judgment must specifically state the element or elements for
which there is no evidence); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310–11 (Tex.
16 2009) (holding that a no-evidence motion must specifically identify the challenged
elements to satisfy Rule 166a(i)).
If the motion is sufficiently specific, the trial court must grant the motion
unless the nonmovant produces summary-judgment evidence that raises a genuine,
material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; B.C. v. Steak N Shake
Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). When reviewing a no-evidence
summary judgment, we examine the entire record in the light most favorable to the
nonmovant—Lopez—indulging every reasonable inference and resolving any doubts
against the motion, Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006), to determine if
the evidence would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the
nonmovant if reasonable jurors could, and we disregard evidence contrary to the
nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310
(citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant
brings forward more than a scintilla of probative evidence that raises a genuine issue
of material fact, then a no-evidence summary judgment is not proper. Smith v.
O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003).
17 2. Applicable Law
Here, Larochelle and Butler’s no-evidence motion targeted Lopez’s
breach-of-contract counterclaim. The elements of a breach-of-contract claim are: (1)
the existence of a valid contract, (2) performance or tendered performance by the
plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages to the
plaintiff. Old Am. Ins. Co. v. Lincoln Factoring, LLC, 571 S.W.3d 271, 282 (Tex. App.—
Fort Worth 2018, no pet.).
3. Analysis
In her brief, Lopez argues that Larochelle and Butler’s no-evidence motion
“does not effectively challenge any element of [her] counterclaim for breach of
contract.” Larochelle and Butler respond by stating that their no-evidence motion
“specifically assail[ed] two different elements” of the breach-of-contract counterclaim,
referring to the elements of breach and damages.13
In their no-evidence motion for summary judgment, Larochelle and Butler
made the following no-evidence statements concerning Lopez’s counterclaim:
• “[L]andlord has also made claims of her own, starting with breach of contract. There is no evidence supporting any of them.”
13 As noted above, Lopez’s counterclaim alleged that Larochelle and Butler had breached the contract in three distinct ways: (1) by failing to report health and safety issues to her as required by Clause 11 of the Lease, (2) by moving without giving her written notice, and (3) by failing to pay rent.
18 • “There is no evidence that landlord returned the security deposit or supplied a written description and itemization on or before that date.”
• “[T]here is also no evidence that her withholding the security deposit was reasonable.”
• “Landlord has no evidence that there were defects or dangerous conditions in and about the premises, and no evidence that Tenant becomes aware of any such condition.”
• “[S]he has no evidence of any loss or damages flowing from a failure to notify her” of defects or dangerous conditions in or about the premises.
• “Landlord has no evidence that tenants had moved or were moving when she terminated their right to possession on June 29, 2023.”
• “She also has no evidence of any loss or damage from the acts she alleges” pertaining to Larochelle and Butler’s moving from the premises.
• “She has no evidence that she did not re-rent the premises for the rest of the lease term.”
• “[S]he has no evidence that she did not re-let the premises.”
• “[S]he has no evidence that she provided ‘a written description and itemization of deductions on or before the 30th day after the date the tenant surrenders possession.’”
• “There is no evidence that landlord meets any of the foregoing requirements [of Texas Property Code Section 92.006(e)] except (4)(A).”
As to the first of the no-evidence statements—that there was no evidence to
support Lopez’s counterclaim—such a statement is a general challenge that fails to
19 identify the specific elements for which no evidence exists, and it will not support
summary judgment. See Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex.
App.—Dallas 2013, pet. denied) (“A no-evidence motion that only generally
challenges the sufficiency of the non-movant’s case and fails to state the specific
elements that the movant contends lack supporting evidence is fundamentally
defective and cannot support summary judgment as a matter of law.”); see also Timpte
Indus., Inc., 286 S.W.3d at 310–11.
The second and third no-evidence statements—that there was no evidence that
Lopez returned the security deposit or that her withholding of the security deposit
was reasonable—do not identify which element of Lopez’s breach-of-contract
counterclaim is being assailed. Thus, those statements will not support summary
judgment either. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc., 286 S.W.3d at 310–11;
Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (“[T]he motion does not single out the elements as to which there is no
evidence. The motion therefore does not meet the requirements of [Rule 166a(i)].”).
And to the extent that those statements could arguably relate to Lopez’s performance
under the Lease, they are not couched in terms of Lopez’s obligations under the Lease
but rather in terms of Lopez’s obligations under Section 92.109 of the Property
Code—something unrelated to Lopez’s breach-of-contract counterclaim. See Three
Thousand, Seven Hundred Seventy-Four Dollars and Twenty-Eight Cents U.S. Currency, 713
S.W.3d at 387 (stating that the purpose of the requirement that a no-evidence motion
20 specifically state the element or elements for which there is no evidence is to provide
the nonmovant with adequate information for opposing the motion and to define the
issues for the purpose of summary judgment).
The fourth and fifth no-evidence statements—that Lopez had no evidence that
Larochelle and Butler were aware of defects or dangerous conditions in and about the
Property and no evidence that Lopez had sustained any damages regarding any failure
to notify her of any defects or dangerous conditions—are different, though. Those
statements do relate to one aspect of Lopez’s breach-of-contract counterclaim: that
Larochelle and Butler breached Clause 11 of the Lease by failing to report health and
safety issues to her. We hold that the fourth and fifth no-evidence statements, which
were made following a discussion of Clause 11 of the Lease, properly informed Lopez
that Larochelle and Butler were challenging the breach and damages elements of that
part of Lopez’s breach-of-contract counterclaim. See Fieldtech Avionics & Instruments,
Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 824 (Tex. App.—Fort Worth 2008,
no pet.) (holding that statement “there is no evidence that Fieldtech did not receive
the Software it leased or that the Software did not perform” was “sufficiently specific
to pass [R]ule 166a(i) muster”).
Turning to those elements, in her brief, Lopez does not point us to any
evidence in the summary-judgment record that would raise a fact issue on whether
Larochelle and Butler had breached the Lease by failing to report health and safety
issues to her or suffered damages as a result, and we have found no such evidence,
21 even when considering the exhibits attached to Lopez’s original summary-judgment
response.14 Thus, we must affirm the trial court’s summary-judgment ruling with
respect to this aspect of Lopez’s counterclaim. See B.C., 598 S.W.3d at 259; see also
Gabriel v. Associated Credit Union of Tex., No. 14-12-00349-CV, 2013 WL 865577, at *5
(Tex. App.—Houston [14th Dist.] Mar. 7, 2013, pet. denied) (mem. op.) (“Because
Gabriel introduced no evidence of damages stemming from the mistakenly assessed
late fees, the trial court properly granted no-evidence summary judgment against his
late fee claims.”).
The sixth and seventh no-evidence statements—that Lopez had no evidence
that Larochelle and Butler had moved or were moving when she terminated their
right to possession and no evidence that she had sustained any loss or damage from
their move—relate to another part of Lopez’s breach-of-contract counterclaim: that
Larochelle and Butler breached the Lease by moving without giving her written
notice. We hold that the sixth and seventh no-evidence statements, which were made
in the context of discussing Lopez’s claim that Larochelle and Butler had breached the
contract by moving without giving her any written notice, properly informed Lopez
that Larochelle and Butler were challenging the breach and damages elements of that
14 Indeed, Lopez seemingly recognizes the lack of evidence in the summary- judgment record pertaining to this facet of her counterclaim, noting that the alleged failure to report health and safety issues “is only one of three distinct breaches [she] identifies” and that her failure to provide summary-judgment evidence with respect to this part of her counterclaim “would not have any impact on [her] right to pursue her claim based on the other breaches listed in her counterclaim.”
22 aspect of Lopez’s breach-of-contract counterclaim. See Fieldtech Avionics & Instruments,
Inc., 262 S.W.3d at 824.
Turning to the damages element of that issue, in her brief, Lopez does not
point us to any evidence in the summary-judgment record that would raise a fact issue
on whether she had sustained any damages resulting from Larochelle and Butler’s
having moved when she terminated their right to possession, and we have found no
such evidence of damages, even when considering the exhibits attached to Lopez’s
original summary-judgment response.15 Thus, we must affirm the trial court’s
summary-judgment ruling with respect to this facet of Lopez’s counterclaim. See B.C.,
598 S.W.3d at 259; see also Gabriel, 2013 WL 865577, at *5.
The eighth and ninth no-evidence statements—that Lopez had no evidence
that she did not “re-rent” or “re-let” the Property—do not identify which element of
Lopez’s breach-of-contract counterclaim is being challenged. Thus, those statements
will not support summary judgment. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc.,
286 S.W.3d at 310–11; Cuyler, 60 S.W.3d at 212. And to the extent that those
statements might arguably relate to a potential affirmative defense that Lopez failed to
mitigate her damages, such a potential affirmative defense is not an essential element
of Lopez’s breach-of-contract counterclaim. See Zimmerman Truck Lines, Inc. v. Pastran,
15 Once again, Lopez seemingly recognizes the lack of evidence in the summary- judgment record pertaining to this aspect of her counterclaim, noting that her alleged challenge relating to Larochelle and Butler moving out of the Property was “only one of three distinct breaches [she] identifie[d].”
23 587 S.W.3d 847, 862 (Tex. App.—El Paso 2019, no pet.) (“Failure to mitigate
damages is an affirmative defense.”).
The tenth and eleventh no-evidence statements—that Lopez had no evidence
that she provided “a written description and itemization of deductions on or before
the 30th day after the date the tenant surrenders possession” and no evidence that she
met the requirements of Texas Property Code Section 92.006(e)—do not identify
which element of Lopez’s breach-of-contract counterclaim is being attacked. Thus,
those statements will not support summary judgment. See Tex. R. Civ. P. 166a(i);
Timpte Indus., Inc., 286 S.W.3d at 310–11; Cuyler, 60 S.W.3d at 212.
Having reviewed the no-evidence motion and the summary-judgment record,
and after viewing that record in the light most favorable to Lopez—the nonmovant—
we hold that Lopez has not produced summary-judgment evidence raising a genuine,
material fact issue with respect to two aspects of her breach-of-contract counterclaim:
her claim that Larochelle and Butler breached the Lease by (1) failing to report health
and safety issues and (2) moving without giving her written notice. Thus, we overrule
Lopez’s first issue with respect to those parts of her counterclaim.
However, after reviewing the no-evidence motion and the summary-judgment
record, we have also determined that Larochelle and Butler did not make any no-
evidence challenge relating to the third aspect of Lopez’s breach-of-contract
counterclaim: her claim that Larochelle and Butler breached the Lease by failing to
pay rent. Because no element of that component of the counterclaim was attacked in
24 the no-evidence motion, the trial court erred by granting summary judgment on that
part of the counterclaim. See Three Thousand, Seven Hundred Seventy-Four Dollars and
Twenty-Eight Cents U.S. Currency, 713 S.W.3d at 387; Timpte Indus., Inc., 286 S.W.3d at
310–11. Thus, we sustain Lopez’s first issue with respect to that part of her
counterclaim.
IV. CONCLUSION
Having overruled part of Lopez’s first issue, we affirm the trial court’s grant of
Larochelle and Butler’s no-evidence motion for summary judgment with respect to
two aspects of Lopez’s breach-of-contract counterclaim—her claim that they
breached the Lease by (1) failing to report health and safety issues to her and
(2) moving without giving her written notice. Having sustained the other part of
Lopez’s first issue, we reverse the trial court’s grant of Larochelle and Butler’s no-
evidence motion for summary judgment with respect to one aspect of Lopez’s breach-
of-contract counterclaim—her claim that they failed to pay rent. As for Lopez’s
second and third issues, we sustained those, so we reverse the trial court’s grant of
Larochelle and Butler’s traditional motion for summary judgment and reverse the trial
court’s award of attorney’s fees. We remand this case to the trial court for further
proceedings consistent with this opinion.
/s/ Dana Womack Dana Womack Justice
Delivered: August 14, 2025