Linda S. Nowlin v. Lori Keaton

• Court: Court of Appeals of Texas
• Decided: May 7, 2019
• Docket: 01-17-00523-CV
• Status: Published

Opinion

Opinion issued May 7, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00523-CV ——————————— LINDA S. NOWLIN, Appellant V. LORI KEATON, Appellee

On Appeal from the County Court at Law No. 1 Travis County, Texas1 Trial Court Case No. C-1-CV-15-005936

MEMORANDUM OPINION

Appellant, Linda S. Nowlin, challenges the trial court’s judgment, rendered

after a jury trial, in favor of appellee, Lori Keaton, in Nowlin’s suit against Keaton

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 17–9066 (Tex. June 20, 2017); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases). for breach of lease agreement and Keaton’s countersuit against Nowlin for failure to

refund security deposit,2 retaliation,3 and other violations of the Texas Property

Code.4 In seven issues, Nowlin contends that the trial court erred in entering

judgment in favor of Keaton on Nowlin’s breach-of-lease-agreement claim, entering

judgment in favor of Keaton on Keaton’s counterclaims, and awarding Keaton

attorney’s fees.

We affirm.

Background

In her amended petition, Nowlin alleged that on May 6, 2014, she purchased

a house in Austin, Texas (the “property”). Prior to Nowlin’s purchase, Keaton lived

at the property pursuant to a lease agreement with the property’s previous owner.

Nowlin and Keaton executed a new lease agreement (the “lease agreement”) when

Nowlin purchased the property.

Nowlin further alleged that the lease agreement provided a lease term from

May 6, 2014 until April 30, 2015 and required Keaton to pay $2,100 in rent each

month. Keaton was to make her rent payments by direct deposit on the first day of

each month, with the exception of her May 2014 rent payment. Keaton was not

2 See TEX. PROP. CODE ANN. §§ 92.103, 92.104. 3 See id. § 92.331. 4 See id. §§ 92.153(a)(3), (a)(5), 92.157(a)(2), 92.158.

2 required to pay a security deposit directly to Nowlin, but the $2,000 security deposit

that Keaton had paid to the property’s previous owner was transferred to Nowlin

when she purchased the property. The lease agreement also required Keaton to pay

a $1,785 reletting fee if she vacated the property under certain conditions before the

end of the lease term.

Additionally, under the terms of the lease agreement, Keaton was to provide

Nowlin with an inventory and condition form at the beginning of the lease term, and

Keaton was liable and required to reimburse Nowlin for any expenses incurred in

remedying damage to the property resulting from any cause other than Nowlin’s own

negligence or fault. The lease agreement also stated that Keaton was to promptly

notify Nowlin, in writing, of any water leaks, mold, electrical problems,

malfunctioning lights, broken or missing locks or latches, and other conditions that

posed a hazard. Further, Keaton was responsible for cleaning the interior of the

property and could be liable for reasonable cleaning charges.

In regard to termination of the lease agreement, Keaton was required to give

thirty-days written notice before moving out of the property. Upon vacating the

property, Keaton was liable for certain charges, including unpaid rent, certain repairs

and damages, replacement of unreturned keys, and the reletting fee, all which could

be deducted from Keaton’s $2,000 security deposit. Nowlin was required to return,

within thirty days of move out, Keaton’s security deposit, less any lawful deductions.

3 Nowlin further alleged that on June 3, 2014, Keaton paid Nowlin rent, but

failed to make any other rent payments thereafter. And Nowlin alleged that on

September 5, 2014, without written notice and prior to the end of the lease term,

Keaton moved out of the property without paying rent for the entire lease term,

responding to a notice of abandonment, making her September rent payment, paying

the $1,785 reletting fee, and cleaning the property.

After Keaton vacated the property, Nowlin discovered that the property had

been damaged. Between September 18, 2014 and November 5, 2014, Nowlin made

repairs to the property, which cost her $13,738. Nowlin also hired a professional

cleaning service to clean the property. Nowlin did not return any portion of Keaton’s

security deposit.

According to Nowlin, after Keaton vacated the property, Nowlin “exercised

reasonable diligence to mitigate [her] damages by repairing the damage to the

property caused by [Keaton] in as prompt a manner as possible and then [by] seeking

another tenant to” rent the property. Nowlin, however, did not find another tenant

for the remaining portion of the lease term, and she received “no actual rent from

any other tenant during that time period.” Nowlin asserted a claim against Keaton

for breach of lease agreement and sought $19,000 for unpaid rent, $13,738 for

repairs to the property, $1,785 for the reletting fee, and attorney’s fees.

4 In her third amended answer and counterclaims, Keaton generally denied the

allegations in Nowlin’s amended petition, asserting, inter alia, that Nowlin had

breached the lease agreement first and waived Keaton’s compliance with the lease

agreement. Keaton also brought counterclaims against Nowlin, alleging that she

began living at the property in 2011 under a lease agreement with the property’s

previous owner. Subsequently, she and Nowlin executed the lease agreement, which

required Keaton to pay $2,100 in rent each month.

After Nowlin purchased the property in May 2014, she and/or her agents,

repeatedly came to the property, oftentimes without proper notice and on holidays,

to make repairs that were purportedly “to protect [Nowlin’s] investment.” Nowlin

told Keaton that “she could enter [the property] whenever she wanted,” and Nowlin

told her contractors that they could leave their tools and materials in the property’s

garage. (Internal quotations omitted.) Nowlin also gave her contractors permission

to use Keaton’s tools to complete their work.

On May 14, 2014, Keaton “expressed to [Nowlin] that she was unaccustomed

to and overwhelmed by” Nowlin’s presence at the property and the presence of

Nowlin’s contractors at the property on an almost daily basis. On May 19, 2014,

Keaton sent Nowlin a letter expressing her frustrations with the frequent intrusions.

At that time, Keaton also requested that Nowlin install a keyless dead bolt lock on

the property’s front door. On May 24, 2014, Nowlin installed a “keyed” dead bolt

5 lock on the property’s front door, stating that it was “keyless” because no key existed

for the lock, despite there being “a clear keyhole on the exterior of the lock.”

(Internal quotations omitted.)

On June 11, 2014, Keaton notified Nowlin, by letter, that she had failed to

provide her address as required by the Texas Property Code, she was continuing to

access the property without providing proper notice, she had failed to install pin

locks on the exterior sliding glass doors at the property, and she had failed to provide

working handle latches for the exterior sliding glass doors. In her letter, Keaton

requested the installation of pin locks, working handle latches, and security bars on

the exterior sliding glass doors. On July 28, 2014, Keaton notified Nowlin by email

that a keyless dead bolt lock still had not been installed on the property’s front door

and “there were no locks on the [property’s exterior] sliding glass doors,” and

Keaton requested the installation of pin locks. According to Keaton, Nowlin did not

provide pin locks or proper security bars for any of the exterior sliding glass doors,

did not fix the inoperable handle latches that did not properly latch to secure the

exterior sliding glass doors, and did not disclose her address as requested.

Keaton further alleged that after Nowlin purchased the property in May 2014,

Nowlin served Keaton with three notices to vacate. The first notice to vacate, served

on June 4, 2014 (the “June 4, 2014 notice to vacate”), stated that Keaton “had

disturbed or threatened the rights, comfort, health, safety or convenience of others

6 and disrupted [Nowlin]’s business operations.” The second notice to vacate, served

on July 2, 2014 (the “July 2, 2104 notice to vacate”), stated that Keaton had failed

to pay rent. Contrary to the July 2, 2014 notice to vacate, however, Keaton alleged

that she had attempted to make her July rent payment by direct deposit, as required

by the lease agreement, but Nowlin had instructed her bank not to accept Keaton’s

deposit. On September 4, 2014, Nowlin served Keaton with a third notice to vacate

(the “September 4, 2014 notice to vacate”). The next day, Keaton told Nowlin that

she was moving out of the property. Keaton asserted counterclaims against Nowlin

for failure to refund security deposit, retaliation, and violations of Texas Property

Code sections 92.153(a)(3), (a)(5), 92.157(a)(2), and 92.158.

In regard to her counterclaim for failure to refund security deposit, Keaton

alleged that Nowlin refused, in bad faith, to return Keaton’s $2,000 security deposit

or provide Keaton with a proper itemized accounting after Keaton had vacated the

property and provided written notice of her forwarding address.5 Keaton sought

$6,100 in damages, “which represent[ed] the statutory penalty of $100 plus three

times the portion of the security deposit withheld by” Nowlin, and attorney’s fees.6

5 See id. §§ 92.103 (obligation to refund security deposit), 92.104 (retention of security deposit and accounting). 6 See id. § 92.109(a) (“A landlord who in bad faith retains a security deposit . . . 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.”); see id. § 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 7 With respect to her counterclaim for retaliation, Keaton alleged that Nowlin

was prohibited from retaliating against her when Keaton, in good faith, had exercised

or attempted to exercise her rights and had made requests for repairs.7 According to

Keaton, a landlord acts in retaliation when she commits any of the following acts

within six months of a tenant exercising her rights or making a repair request: (1) the

landlord files an eviction proceeding against the tenant, (2) the landlord deprives the

tenant of use of the premises, (3) the landlord decreases services to the tenant, and

(4) the landlord increases the tenant’s rent or terminates the tenant’s lease

agreement, or engages in a bad faith course of conduct that materially interferes with

the tenant’s rights under the lease agreement.8

Keaton alleged that she had exercised her right to the peaceful use and

enjoyment of the property by repeatedly requesting that Nowlin reduce the number

of intrusions at the property. In retaliation, Nowlin served Keaton with the June 4,

2014 notice to vacate, attempting to terminate the lease agreement. Further, when

Keaton requested that Nowlin install pin locks on the exterior sliding glass doors,

“repair inoperable handle latches” on the exterior sliding glass doors, and provide

her address as required by the Texas Property Code, Nowlin served Keaton with the

the 30th day after the date the tenant surrenders possession is presumed to have acted in bad faith.”). 7 See id. § 92.331 (retaliation by landlord). 8 See id. § 92.331(b).

8 July 2, 2014 notice to vacate. And after Keaton prevailed in Nowlin’s

forcible-detainer action against her, Nowlin, in retaliation, served Keaton with the

September 4, 2014 notice to vacate. Keaton sought $2,600 in damages, “which

represent[ed] the statutory penalty of one month’s rent plus $500,” and attorney’s

fees.9

Keaton further alleged, in regard to her counterclaims for other violations of

Texas Property Code, that Nowlin violated Texas Property Code section

92.153(a)(3) by refusing to comply with Keaton’s written request for the installation

of pin locks on the exterior sliding glass doors at the property;10 Nowlin violated

Texas Property Code section 92.153(a)(5) by refusing to comply with Keaton’s

written request for the installation of a keyless dead bolt lock on the front door of

the property;11 Nowlin violated Texas Property Code section 92.157(a)(2) by

refusing to comply with Keaton’s written request for the installation of working

handle latches or security bars on the exterior sliding glass doors;12 and Nowlin

9 See id. § 92.333 (“[I]f a landlord retaliates against a tenant . . . , the tenant may recover from the landlord a civil penalty of one month’s rent plus $500, actual damages, court costs, and reasonable attorney’s fees . . . .”). 10 See id. § 92.153(a)(3) (“[W]ithout necessity of request by the tenant, a dwelling must be equipped with: . . . a sliding door pin lock on each exterior sliding glass door of the dwelling . . . .”). 11 See id. § 92.153(a)(5) (“[W]ithout necessity of request by the tenant, a dwelling must be equipped with: . . . a keyless bolting device and a door viewer on each exterior door of the dwelling.”). 12 See id. § 92.157(a)(2) (“At a tenant’s request made at any time, a landlord . . . shall install: . . . a sliding door handle latch or sliding door security bar if the door is an 9 violated Texas Property Code section 92.158 by “refusing to repair or replace

[certain] broken security devices, specifically the inoperable [handle] latches [on the

exterior] sliding glass doors.”13

Related to her counterclaims for violations of Texas Property Code sections

92.153(a)(3) and (a)(5), Keaton sought $13,000 in damages, “which represent[ed]

the statutory penalty of one month’s rent ($2,100) plus $500, multiplied by five

violations,” and attorney’s fees.14 Related to her counterclaim for a violation of

Texas Property Code section 92.157(a)(2), Keaton sought $7,800 in damages,

“which represent[ed] the statutory penalty of one month’s rent ($2,100) plus $500[,]

multiplied by four doors,” and attorney’s fees.15 Finally, related to her counterclaim

for a violation of Texas Property Code section 92.158, Keaton sought $7,800 in

exterior sliding glass door without a sliding door handle latch or sliding door security bar.”). 13 See id. § 92.158 (“During the lease term and any renewal period, a landlord shall repair or replace a security device on request or notification by the tenant that the security device is inoperable or in need of repair or replacement.”). 14 See id. § 92.164(a)(4) (“If a landlord does not comply with [s]ection 92.153 . . . regarding installation . . . of a security device, the tenant may: . . . serve a written request for compliance on the landlord, and[] . . . if the landlord does not comply on or before the third day after the date the notice is received, file suit against the landlord and obtain a judgment for: . . . actual damages[,] . . . a civil penalty of one month’s rent plus $500[,] . . . [and] attorney’s fees . . . .”). 15 See id. § 92.165(3) (“If a landlord does not comply with a tenant’s request regarding rekeying, changing, adding, repairing, or replacing a security device under [s]ection . . . 92.157, . . . the tenant may: . . . file suit against the landlord and obtain a judgment for: . . . actual damages[,] . . . a civil penalty of one month’s rent plus $500[,] . . . [and] attorney’s fees . . . .”).

10 damages, “which represent[ed] the statutory penalty of one month’s rent ($2,100)

plus $500[,] multiplied by three devices,” and attorney’s fees.16

At trial, the trial court admitted into evidence a copy of the lease agreement

signed by Nowlin and Keaton. The lease term under the agreement began in May

2014 and ended on April 30, 2015. Pursuant to the lease agreement, Keaton was

required to pay $2,100 every month directly into Nowlin’s bank account (the

“deposit account”). Keaton’s rent payment was due on the first of the month, but no

late fees were to be imposed on Keaton until after the third day of the month. Under

the lease agreement, the $2,000 security deposit that Keaton had paid to the

property’s previous owner was to be transferred to Nowlin at the time she purchased

the property. Additionally, the lease agreement provided that Keaton would receive

an inventory and condition form on which she was to note any defects or damage to

the property that existed at the beginning of the lease term.

In order to move out of the property, the lease agreement required Keaton to

provide written move-out notice. Keaton was also liable for a $1,758 reletting fee if

she failed to give written move-out notice as required under the lease agreement,

moved out without paying rent in full for the entire lease term, moved out at

16 See id. (“If a landlord does not comply with a tenant’s request regarding rekeying, changing, adding, repairing, or replacing a security device under [s]ection . . . 92.158 . . . , the tenant may: . . . file suit against the landlord and obtain a judgment for: . . . actual damages[,] . . . a civil penalty of one month’s rent plus $500[,] . . . [and] attorney’s fees . . . .”).

11 Nowlin’s demand because of default, or was judicially evicted. The lease agreement

further provided that Nowlin was required to refund Keaton’s security deposit, less

any lawful deductions, and provide an itemized accounting of any deductions within

thirty days of Keaton vacating the property. Nowlin could deduct any unpaid rent

from Keaton’s security deposit.

In regard to security devices for the property, the lease agreement stated that

Nowlin was required by Texas law to provide pin locks on the exterior sliding glass

doors, either handle latches or security bars on the exterior sliding glass doors, and

“a keyless bolting device (deadbolt) on each exterior door.” And Nowlin was

required to pay for any missing security devices that were required by statute.

The trial court also admitted into evidence a copy of Keaton’s inventory and

condition form, which she completed at the beginning of the lease term and which

Nowlin signed. The form states that the property contained no “[k]eyless bolting

devices,” keyless dead bolt locks, or pin locks for the exterior sliding glass doors.

Further, the handle latches on the upstairs exterior sliding glass doors did not

function. In regard to security bars, the form states that only two of the upstairs

exterior sliding glass doors had bars.

Nowlin testified that she and Keaton signed the lease agreement, which had a

lease term from May 6, 2014 to April 30, 2015. Under the lease agreement, Keaton

12 was required to pay $2,100 each month by direct deposit into Nowlin’s deposit

account.

Keaton made her rent payments in May and June 2014. However, on June 4,

2014, Nowlin served Keaton with a notice to vacate, a copy of which the trial court

admitted into evidence. That notice states, in part:

You have violated your lease contract as noted below: Lease Paragraph: 20 Prohibited Conduct. See also Paragraph 28 When We May Enter.

Name of resident or occupant or guest in violation: Lori Keaton[.]

Nature of violations: Disturbing or threatening the rights, comfort, health, safety or convenience of others including our agents; disrupting our business operations.

These were substantial breaches of your TAA Lease Contract.

Your residency is terminated effective immediately. You are hereby given notice to vacate the premises on or before midnight, June 5, 2014, which is at least one day from the delivery of this notice in accordance with your lease contract. Failure to move out by then will result in an eviction suit being filed before the Justice of the Peace. Delay or postponement of such action does not waive our rights. You are liable for all rent due under the full term of your contract, damages to the premises, legal fees and any other charges due under the terms of your agreement.

On June 4, 2014, Nowlin also filed a forcible-detainer action against Keaton,

alleging that Keaton had breached the lease agreement by unreasonably refusing to

allow Nowlin or her agents to enter the property to make repairs or perform

maintenance and by failing to pay her rent in a timely manner.

13 According to Nowlin, Keaton did not make any rent payments after June 2014.

Thus, in Nowlin’s opinion, Keaton had failed to pay $21,000 in rent that was due

under the lease agreement. In regard to Keaton’s July rent payment, although Keaton

told Nowlin that she had tried to make the rent payment for that month, Nowlin

explained that Keaton did not make the rent payment on July 1, 2014. And because

of this, Nowlin immediately placed “a hold on [any] deposits” into her deposit

account, which prevented Keaton from making any rent payments by the method

provided for in the lease agreement. In other words, Nowlin “blocked” deposits to

the deposit account. On July 2, 2014, Nowlin served Keaton with a second notice

to vacate, a copy of which the trial court admitted into evidence. That notice states,

in part:

Re: TAA Lease Contract dated 4/12/14 between [Keaton] and Linda Nowlin (owner)[.]

Because of non-payment of rent, your residency is terminated effective immediately. You are hereby given notice to vacate the premises on or before midnight, July 3, 2014, which is at least one day from the delivery of this notice in accordance with your lease contract. Failure to move out by then will result in an eviction suit being filed before the Justice of the Peace. Delay or postponement of such action does not waive our rights. You are liable for all rent due under the full term of your contract, damages to the premises, legal fees and any other charges due under the terms of your agreement.

Nowlin noted that at the time she served Keaton with the July 2, 2014 notice to

vacate, her forcible-detainer action was still pending.

14 Nowlin further testified, related to her forcible-detainer action, that she had

admitted in that suit that she was “aware that under . . . Texas Property Code,

[s]ection 92.153,” she, as a landlord, was required to install certain items at the

property without a request from her tenant. And she conceded in that suit that

Keaton had complained about the exterior sliding glass doors at the property because

“the locks would not work.” Although in Nowlin’s opinion, the exterior sliding glass

doors were secure, she did admit, in her forcible-detainer action, that her contractors

did not think that the doors’ locks could be repaired or replaced because “they were

so old.” Thus, Nowlin’s contractors told her that security bars would be required to

ensure that the exterior sliding glass doors could not be opened from the outside, and

Nowlin testified at that time that she was “ready to buy new bars.”

Ultimately, in August 2014, the jury in Nowlin’s forcible-detainer action

found that Keaton had not unreasonably refused to allow Nowlin or her agents to

enter the property and that Keaton had not failed to make her rent payments under

the lease agreement in a timely manner. And the trial court entered judgment in

favor of Keaton in that case, which the Austin Court of Appeals affirmed.17 A copy

of the trial court’s charge to the jury in Nowlin’s forcible-detainer action, dated

August 27, 2014, was admitted into evidence in the instant case, and Nowlin

17 See Nowlin v. Keaton, No. 03-14-00608-CV, 2015 WL 3542895 (Tex. App.— Austin June 4, 2015, no pet.) (mem. op.).

15 acknowledged that the jury in her forcible-detainer action determined that Keaton

did not violate the lease agreement by making her July rent payment “late.” And

when asked whether the judgment in the forcible-detainer action stated that “Keaton

did not violate the lease [agreement by] paying late or not paying [rent] through

August 2014,” Nowlin responded, “I believe that’s correct.” Nowlin further

admitted that there was no longer any controversy concerning the amount of rent at

issue in her forcible-detainer action, i.e., Keaton’s July and August rent payments.

Turning back to the instant case, in regard to the property’s front door, Nowlin

testified that in a May 19, 2014 letter, a copy of which the trial court admitted into

evidence, Keaton requested that a keyless dead bolt lock be installed on the front

door. According to Nowlin, her contractors installed a “keyless bolting device” on

the door on May 23, 2014. Nowlin explained that in the process of installing the

dead bolt lock, her contractors mistakenly “drilled all the way through [the door]

thinking that there was supposed to be a key on the outside and a bolting device on

the inside.” When they realized the mistake, instead of replacing the door, they “took

the pin out so that any key put in from the outside would just spin”; it was not

connected to any “bolting device.” When asked whether the “keyless bolting

device” that her contractors installed on the property’s front door actually had “a key

hole that [someone] could key on the outside of th[e] door,” Nowlin responded: “I

don’t know.” On July 28, 2014, Keaton sent Nowlin an email, a copy of which the

16 trial court admitted into evidence, notifying her that the property still required certain

“services and repairs,” including the installation of a keyless dead bolt lock on the

front door.

With respect to the exterior sliding glass doors on the property, Nowlin noted

that the only devices securing the exterior sliding glass doors were pieces of wood

or PVC pipe that were laid at the bottom of the doors. The trial court admitted into

evidence photographs of the pieces of wood and the PVC pipe found at the bottom

of the exterior sliding glass doors at the property. Nowlin stated that she never

purchased security bars, such as those available at home improvement stores, for the

exterior sliding glass doors because she considered the pieces of wood or the PVC

pipe to constitute security bars. Nowlin conceded that she was “not sure [whether]

placing a PVC pipe in at an angle or a piece of wood” actually secured the exterior

sliding glass doors, and she noted that the type of security bars that would “go across

the middle of [a] door” would provide additional security for the property. In fact,

Nowlin had installed such security bars at other properties that she owned.

Further, Nowlin acknowledged that the exterior sliding glass doors did not

have pin locks when she purchased the property and Keaton had told her that the

handle latches on the exterior sliding glass doors did not work. Additionally, Nowlin

affirmed that the inspector, who inspected the property prior to Nowlin’s purchase,

also notified her that the handle latches on the upstairs exterior sliding glass doors

17 needed to be adjusted and did not latch. A copy of the inspector’s report, which the

trial court admitted into evidence, states, in part: “The handle locks for all three

sliding glass doors along the [west] side of the house need to be adjusted” because

the locks do not latch.

Nowlin also explained that on her inventory and condition form, which

Nowlin conceded listed items at the property that were damaged or in need of repair,

Keaton noted that the upstairs living room exterior sliding glass door did not lock.

And Nowlin confirmed that Keaton referred to the lack of security bars on the

exterior sliding glass doors in the June 11, 2014 letter to Nowlin. Moreover, in a

July 28, 2014 email to Nowlin, Keaton notified her that the “locks on the [exterior]

sliding glass doors” were in need of “services and repairs.” At some point while

Keaton still lived at the property, Nowlin’s contractors readjusted the handle latches

on the exterior sliding glass doors to “ma[k]e them easier to lock.” In Nowlin’s

opinion, the handle latches on the exterior sliding glass doors always functioned

while Keaton lived at the property.

On September 4, 2014, Nowlin served Keaton with her third notice to vacate.

Nowlin testified that this notice to vacate was served after the jury in Nowlin’s

forcible-detainer action had found in favor of Keaton. The September 4, 2014 notice

to vacate, a copy of which the trial court admitted into evidence, states, in part:

Re: TAA Lease Contract dated 4/12/14 between [Keaton] and Linda Nowlin (owner)[.] 18 You are in arrears on your rental payments in the amount of $6,300.00.

Because of your continued violations of the Lease Agreement, including your refusal to provide entry for maintenance upon demand and your non-payment of rent, your residency is terminated effective immediately. You are hereby given notice to vacate the premises before 11:59, p.m., [September] 5, 2014,[18] which is at least one day from the delivery of this notice in accordance with your lease contract. Failure to move out by then will result in an eviction suit being filed against you. Delay or postponement of such action does not waive our rights. You are liable for all rent due under the full term of your contract, damages to the premises, legal fees and any other charges due under the terms of your agreement.

According to Nowlin, the September 4, 2014 notice to vacate, asserted that

Keaton had failed to pay $6,300 in rent, which included Keaton’s rent for the months

of July and August. Nowlin made that assertion even though she knew that the jury,

in her forcible-detainer action, did not find that she was entitled to unpaid rent for

the months of July and August and even though she knew that she had actually

prevented Keaton from paying rent pursuant to the lease agreement.

In accordance with the September 4, 2014 notice to vacate, Keaton moved out

of the property on September 5, 2014, which Nowlin opined was before the end of

the lease term. Keaton failed to give Nowlin written notice of her move-out, did not

pay all of the rent that Nowlin believed she was owed, and did not pay the $1,785

18 The September 4, 2014 notice to vacate mistakenly listed August 5, 2014, rather than September 5, 2014, as the date by which Keaton was required to vacate the property. Nowlin testified that this was a “typo.”

19 reletting fee. Nowlin stated that she did not consent to Keaton moving out on or

before September 5, 2014, although she wanted Keaton to leave and had tried to

evict her.

After Keaton vacated the property, Nowlin discovered that the property had

been damaged, and Nowlin spent $13,738 repairing damages she believed that

Keaton had caused. We note that Nowlin testified extensively as to the purported

damage that Keaton caused to the property, and the trial court admitted into evidence

numerous photographs of the property taken by Nowlin. The trial court also

admitted into evidence a spreadsheet, dated June 15, 2015, which purported to

account for the property’s “repairs or damages caused by negligence, carelessness,

accident or abuse.” Nowlin testified that she did not include amounts for normal

“wear and tear” in her accounting, did not charge Keaton for items that were listed

on the inventory and condition form, and did not cause any of the damages to the

property herself. Nowlin stated that she could not recall ever sending Keaton a copy

of the spreadsheet. According to Nowlin, Keaton did not pay or reimburse her for

the $13,738 that she had spent repairing the damage to the property.

Nowlin further testified that after Keaton vacated the property, she did not

return Keaton’s $2,000 security deposit because Keaton “owed more in rent than the

amount of the security deposit,” including rent for the month of September 2014.

On October 4, 2014, Nowlin sent Keaton an email, a copy of which the trial court

20 admitted into evidence, with a subject line stating: “Security Deposit Accounting.”

That email states, in part:

I am sending this to the last known email address I have for you because you did not designate a physical forwarding address after you moved out, as required by the lease agreement. The lease requires that I send you an accounting of your security deposit within thirty days of your leaving the property. That accounting is as follows:

Because you have unpaid rent that exceeds your $2,000.00 security deposit, you are not entitled to a refund of any portion thereof.

Nowlin testified that her October 4, 2014 email did not “provide an itemized list of

all rent and damages due.”

In response to Nowlin’s email, Keaton’s attorney sent an email, a copy of

which the trial court admitted into evidence, requesting that Keaton’s $2,000

security deposit be returned in full, providing Keaton’s forwarding address, and

stating that the trial court in Nowlin’s forcible-detainer action had “stated

unequivocally in open court that . . . Keaton d[id] not owe rent to . . . Nowlin.”

Nowlin acknowledged that under the Texas Property Code she had an obligation to

refund Keaton’s security deposit or “provide an accounting within 30 days” of

Keaton’s moving out of the property.

Keaton testified that she moved into the property in 2011 after signing a lease

agreement with the property’s previous owner. When Keaton moved into the

property, the locks on the exterior sliding glass doors did not function.

21 After Nowlin purchased the property, in May 2014, she, or her contractors,

began coming to the property approximately every other day. Keaton characterized

Nowlin’s intrusions as excessive and stated that Nowlin demanded “24/7” access to

the property. For instance, on May 6, 2014, the first day that the lease agreement

was in effect, Nowlin sent Keaton multiple “urgent” text messages demanding entry

to the property. And when Nowlin arrived at the property, she started opening

drawers, “taking things out,” and “putting things in” without Keaton’s permission.

On May 19, 2014, Keaton sent Nowlin a letter, a copy of which the trial court

admitted into evidence. That letter states, in part:

It is my understanding that you have four projects in the works right now: the kitchen (which has already displaced me for a week to a shady extended stay), the front door, the porch light, and the garage door. It is my perception that your plans extend past those projects.

While I am quite aware of our lease regarding repairs and entry into my home while I am your tenant, I am feeling the effect of having my privacy, peace, and quiet disrupted. I feel that the frequency of the visits and intrusions are becoming excessive and I fear that if I don’t speak up, I will be allowing the precedence of unlimited intrusions into my home and my life.

My research into the regulations and case law have educated me about my rights to peace and quiet and my rights to privacy as your tenant. . . . What I have found is that repairs that do not compromise the integrity of the property nor compromise my safety or security, are not necessary to attend while I hold present possessory interest. (Tex. Prop. Code section 92.052a)[.] In fact, I believe that they intrude on my right to privacy and my right to peace and quiet. (HYM Restaurants, Inc. v Goldman Sachs &Co., 797 S.W.2d 326, 1990)[.]

22 It is my request that only repairs that may compromise the integrity of the property or compromise my family’s safety and/or security, be addressed and remedied while I am leasing from you.

I also request that you install a keyless deadbolt on the front door and the downstairs entry door to ensure my privacy and security when I am home. (Tex. Prop. Code section 92.153)[.]

(Emphasis omitted.)

After Keaton’s May 19, 2014 letter, Nowlin’s visits to the property continued,

and Nowlin became more abrasive in her demands to enter the property. On one

occasion, Keaton discovered that Nowlin’s contractors had used her personal tools

to mix concrete and that someone had entered the property while she was not there

and without providing proper notice. Keaton realized that either Nowlin or her

agents had entered the property on that particular day because “lights had been left

on in the loft, furniture had been moved away from the wall as though [Nowlin] or

her agents were inspecting outlets, . . . [a]nd an entire light fixture in the loft had

been removed.” On another occasion, Nowlin came to the property in the morning

while Keaton was still asleep. Because Nowlin failed to bring her key with her, she

knocked on the front door. When Keaton did not answer, Nowlin repeatedly called

her on her telephone until Keaton answered. After Nowlin requested that Keaton let

her into the property, Keaton informed her that she was not clothed, but she would

answer the door anyways. Keaton opined that this incident led to Nowlin serving

her with the June 4, 2014 notice to vacate.

23 On June 11, 2014, Keaton sent Nowlin another letter “point[ing] out a lot of

the violations that [Nowlin] had committed according to the [Texas] Property Code.”

The letter, a copy of which the trial court admitted into evidence, states, in part:

I received your Notice to Vacate for Breach of Lease dated June 4, 2014 and was served with an Eviction Citation on June 10, 2014. . . .

What You Want Has Changed[.] I want to understand what you want so that I may try to accommodate you as best as I can without unreasonably compromising my standard of living. Prior to the closing, I believe we both wanted the same thing: in effect, for me to pay your mortgage, taxes, and insurance for the next year on the [property].

However, since the closing date May 6th but prior to June 1st, and as evidenced by your correspondence (see attached) my perception is that your desires changed to: 1) 24 hour access to the house to make inspections, repairs, and upgrades, no matter the effect it has on the lives of me and my family; and 2) $2100/month in rent for the next eleven months.

Since June 1st, based on your correspondence, your lack of compliance with our lease and state statute, and the aforementioned Notice to Vacate and Eviction suit, I believe you now want: 1) to not fulfill your lease obligations and instead, have me move out, thereby displacing me and my family; 2) to keep my security deposit of $2000; and 3) to charge me a reletting fee of $1785.

....

I Am in Compliance with All Lease Provisions and State Statutes and Demand an Explanation[.] I am not in violation of Paragraph 20 – Prohibited Conducted. I have not disturbed or threatened the rights of you or any of your agents, and I have not disrupted your business operation. Although I asked that you confine your entry to the [property] to the hours of 9 a.m. – 5 p.m., 24 preferably weekdays, and only for repairs that threaten my family’s safety or the integrity of the [property], I have never refused you entry into the [property] when I’m present. I provided you all the keys and access codes when you asked for them. . . .

You, as Landlord, Are in Violation of Our Lease and State Statutes[.] 1) You are in violation of Texas Property Code Sec. 92.201. You have omitted your physical address from all correspondence and contracts between us.

2) You are in violation of Lease Paragraph 28 – When We (Landlord) May Enter. You did not leave a written notice why you or your contractors were in the loft while I was not home. This event is documented in a May 24th email (see attached) from me to you.

3) You are in violation of Lease Paragraph 9 – Security Devices; Lease Paragraph 25 – Condition of the Premises and Alterations; Lease Paragraph 31 – Responsibilities of Owner; Texas Property Code Sec. 92.153(a)(3) and (a)(4); and Texas Property Code Sec. 92.157.

You have refused to install a sliding door pin lock on each exterior sliding glass door of the dwelling and a sliding door handle latch or a sliding door security bar on each exterior sliding glass door of the dwelling. You were made aware of the lack of this statutorily-mandated requirement by: a) the inspection report; b) the lease[;] c) the move-in check list; and d) this correspondence.

In addition, your removal of wood from around the frame of the front door has compromised its integrity and stolen from me and my family the peace of mind and security for which a front door is intended. Your stated intention (see attached email) was to repair the front door by replacing the frame to ensure its security; instead, you made the door insecure and have yet to schedule to repair it. According to Lease Paragraph 31, I have the right to terminate our lease but have 25 elected not to do so. As the attached emails show, I have satisfied the criteria required to allow me to terminate our lease as evidenced by: a) your agent’s unfinished work on the front door leaving it unsecure and unsafe; b) the inspection report; c) previous emails regarding legally mandated repair request; and d) this letter.

4) You have trespassed and you have authorized others to do so by giving your contractors consent to store their belongings in the garage of which I have present possessory interest.

5) You are in violation of Texas Property Code Sec. 92.331. You are retaliating against me. I’ve exercised in good faith my rights granted to me by our lease, municipal ordinance, or federal or state statute. I’ve also given you notices regarding repairs. You are breaking the law by filing an eviction proceeding, depriving me the use of the premises, decreasing services to me, attempting to terminate my lease, and engaging in bad faith, in a course of conduct, that materially interferes with my rights under our lease.

In regard to the property’s front door, Keaton explained that when she moved

into the property, in 2011, there was a wooden door that was weathered and rotting.

Eventually, Keaton, before Nowlin purchased the property, replaced that wooden

door with a metal door that she had purchased herself. At the time that Keaton

switched the front doors, she also intended to replace the front door’s frame, but she

did not complete that work before Nowlin’s purchase of the property. After the

purchase, Nowlin told Keaton that she did not want her to do any repairs to the

property and Nowlin’s contractors would finish replacing the front door’s frame.

However, when the contractors completed their work on the front door, they left it

unsecured. Specifically, the front door could not close independently and if the door 26 was not “dead[-]bolted,” then it could simply be kicked open. The contractors, while

completing their work on the front door’s frame, also caused the window next to the

front door to become unsecured, allowing an individual to “come up and kick it open

with ease.”

Keaton further testified, related to the front door, that she requested the

installation of a keyless dead bolt lock on the door. However, according to Keaton,

the lock that Nowlin’s contractors actually installed on the front door had a keyhole,

which Nowlin “wanted [Keaton] to consider [to be] keyless on the door.” In other

words, instead of a keyless dead bolt lock, a “keyed” dead bolt lock was installed on

the front door. Although Keaton did not have the key for the lock, she explained

that the lock had been manufactured with a key.

With respect to the exterior sliding glass doors on the property, Keaton

testified that there were four—three upstairs and one downstairs. All of the sliding

glass doors lacked pin locks and appropriate security bars. Also, the handle latches

on the upstairs exterior sliding glass doors did not function. Keaton noted on her

inventory and condition form that the exterior sliding glass doors did not lock and

that the upstairs exterior sliding glass doors did not latch. Keaton explained that at

the time that she filled out her inventory and condition form, she did not know what

constituted a security bar. Nowlin never repaired the handle latches on the exterior

sliding glass doors and did not install pin locks or security bars.

27 In regard to the payment of rent, Keaton testified the lease agreement required

her to pay $2,100 per month for twelve months. Keaton’s rent payment was due on

the first of the month and considered late on the fourth of the month. In May 2014,

Keaton made her rent payment to the property’s previous owner, who then

transferred a prorated amount to Nowlin. In June 2014, she made a $2,100 rent

payment to Nowlin. In July 2014, when Keaton tried to make her rent payment,

Nowlin’s bank refused to accept Keaton’s direct deposit into Nowlin’s deposit

account. Thereafter, Keaton was never able to “successfully convey[] to [Nowlin]

any money for rent.” Further, after Nowlin prevented Keaton from directly

depositing her rent payments into the deposit account, Nowlin specifically told

Keaton that “she would never accept [her] rent,” including Keaton’s September 2014

rent payment. When asked at trial whether “[b]efore [she] moved out, did [she] pay

all of the rent that was due under the [lease agreement],” Keaton responded, “[Y]es.”

Keaton also opined that she was not required to pay $21,000 in rent for the remaining

ten months of the lease term because the lease agreement was no longer in effect at

the time that she vacated the property and it had been terminated by Nowlin.

Keaton moved out of the property on September 5, 2014, and in doing so, she

spent between $500 and $800 on a “storage pod.” Keaton stated that she gave

Nowlin verbal notice that she was moving out, and the lease agreement provided

exceptions to the requirement that her move-out notice be in writing.

28 When Keaton vacated the property, she left it “spotless” and in a better

condition than when she had moved in. She mowed the lawn, repaired holes and

texturized the walls in places, removed all trash, shampooed and vacuumed the

carpets, and extensively cleaned the property. According to Keaton, she did not

“leave [the property] trashed.” During Keaton’s testimony, the trial court admitted

into evidence four videotaped recordings showing the property after Keaton had

moved out.

Finally, Keaton testified that Nowlin never returned any portion of her $2,000

security deposit. According to Keaton, Nowlin told her that she was deducting

Keaton’s unpaid rent from the security deposit, and Keaton’s unpaid rent exceeded

$2,000.

Russell Maughan, a handyman, testified that he performed work at the

property for Nowlin. In regard to the property’s front door, Maughan testified that

he installed a keyless dead bolt lock on the door. And although the keyless dead bolt

lock that he installed had a keyhole, he “disconnect[ed] th[e] connecting key pin

from the outside key part to the inside latch part which basically render[ed] [the lock]

a keyless dead bolt [lock].” Thus, if someone was to put a key in or “try to pick the

lock” on the outside, the key would “spin in the cylinder and not engage the dead

bolt,” and the lock could not be operated from the outside. In Maughan’s opinion,

29 he installed, on the property’s front door, a lock that functioned as a keyless dead

bolt lock.

With respect to the exterior sliding glass doors at the property, Maughan

explained that while Keaton was living at the property, he fixed the handle latches

on the exterior sliding glass doors so that they would lock properly. More

specifically, in regard to the exterior sliding glass doors’ handle latches, Maughan

stated:

Typically there’s a bar in the track, then a little lever comes up and latches either from the top or the bottom, depending upon the door and how it’s installed. And almost all of them were misaligned. The little -- what it connects to, what the latch connects to, was either too high or too low. Not all of them but a couple of them if I remember correctly. They weren’t adjusted properly. So I adjusted the catch mechanism that’s in the door frame to where when they did it, they would lock. And when I was done, they all locked properly.

Further, Maughan testified that he did not install pin locks on any of the exterior

sliding glass doors, and he was not “positive” whether “one or two of [the doors]

already had pin locks.”

The jury found in favor of Keaton on Nowlin’s breach-of-lease-agreement

claim. The jury also found in favor of Keaton on her counterclaims for failure to

refund security deposit,19 retaliation,20 and other violations of the Texas Property

19 See TEX. PROP. CODE ANN. §§ 92.103, 92.104. 20 See id. § 92.331.

30 Code.21 Specifically, the jury found that Nowlin, in bad faith, wrongfully failed to

refund Keaton’s $2,000 security deposit; Nowlin retaliated against Keaton; Nowlin,

within a reasonable time after having received a written request, failed to install a

keyless dead bolt lock on the property’s front door, install pin locks on the exterior

sliding glass doors without pin locks, install security bars on the exterior sliding glass

doors without security bars, and repair or replace the handle latches on the exterior

sliding glass doors; and $500 would reasonably compensate Keaton for Nowlin’s

failure to install, repair, or replace the aforementioned security devices.

Nowlin filed a motion for a judgment notwithstanding the verdict, asserting

that no evidence supported the jury’s failure to find that Keaton breached the lease

agreement and no evidence supported the jury’s affirmative findings on Keaton’s

counterclaims for failure to refund security deposit, retaliation, and other violations

of the Texas Property Code. Keaton moved for entry of judgment based on the jury’s

findings and for an award of attorney’s fees.22

The trial court entered a judgment that Nowlin take nothing on her claim

against Keaton for breach of lease agreement. Further, the trial court entered a

judgment in favor of Keaton on her counterclaims, and in doing so, awarded her

21 See id. §§ 92.153(a)(3), (a)(5), 92.157(a)(2), 92.158. 22 By agreement, issue of attorney’s fees was tried to the trial court.

31 $500 in actual damages, $19,100 in statutory damages, and $28,775 in attorney’s

fees.

Nowlin subsequently filed a motion for new trial, which the trial court denied.

Breach of Lease Agreement

In her first issue, Nowlin argues that the trial court erred in entering judgment

in favor of Keaton on Nowlin’s claim for breach of lease agreement because the

evidence conclusively establishes that Keaton failed to pay rent, failed to pay the

$1,785 reletting fee, and moved out before the end of the lease term without giving

written notice and paying rent in full for the entire lease term.23

When a party attacks the legal sufficiency of an adverse finding on an issue

for which she bears the burden of proof, the party must demonstrate that the evidence

establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In conducting a legal sufficiency

review, we review the evidence presented below in the light most favorable to the

jury’s verdict, crediting favorable evidence if reasonable jurors could and

disregarding contrary evidence unless reasonable jurors could not. Del Lago

23 To the extent that Nowlin asserts that the trial court erred in denying her motion for summary judgment on her breach-of-lease-agreement claim, we note that after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 509 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

32 Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010); City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005). A legal-sufficiency challenge may only be

sustained if the contrary position is conclusively established by the evidence. Dow

Chem., 46 S.W.3d at 241. Evidence is conclusive only if reasonable people could

not differ in their conclusions. See City of Keller, 168 S.W.3d at 816.

The jury, as the fact finder, is the sole judge of the credibility of the witnesses

and the weight to give their testimony. Id. at 819. It may choose to believe one

witness over another. Id. A reviewing court must assume that the jury resolved all

conflicts in the evidence in accordance with its decision if a reasonable fact finder

could have done so. See id. at 820. A reviewing court may not “impose [its] own

opinions to the contrary” or “substitute its judgment for that of the [jury].” Id. at

819, 822. The jury “may disregard even uncontradicted and unimpeached testimony

from disinterested witnesses,” so long as the decision to disregard is reasonable. Id.

at 820.

In Question No. 1 of its charge to the jury, the trial court asked, related to

Nowlin’s breach-of-lease-agreement claim:

Did LORI KEATON fail to comply with the [lease agreement] by:

33 1. Not paying rent and fees, and/or

2. Moving out before the end of the lease term without giving written notice and paying rent in full for the entire lease term?

Answer “Yes” or “No.”[24]

The jury answered: “No.”

In regard to the payment of rent, the lease agreement, provided that Keaton

was to pay $2,100 each month directly into Nowlin’s deposit account for the term of

the lease. Keaton testified that her rent was due on the first of each month and was

considered late on the fourth of each month. It is undisputed that Keaton made her

rent payments in both May and June 2014.

When Keaton tried to make her July 2014 rent payment by direct deposit, as

required by the lease agreement, Nowlin’s bank refused to accept the payment into

Nowlin’s deposit account. According to Nowlin, she had placed “a hold on [any]

deposits” and “blocked” deposits into her deposit account immediately after Keaton

did not make her rent payment on July 1, 2014. Nowlin considered Keaton’s July

rent payment to be late because it was not paid on the first day of the month.

Further, Keaton testified that, after Nowlin prevented Keaton from directly

depositing her rent payments into the deposit account, Nowlin specifically told her

that “she would never accept” rent from Keaton, including Keaton’s September 2014

24 Nowlin raised no objection in the trial court to Question No. 1.

34 payment. Keaton opined that she was not required to pay $2,100 each month for the

remaining ten months of the lease term, which Nowlin had claimed she was owed,

because the lease agreement was no longer in effect and had been terminated by

Nowlin. When asked at trial whether “[b]efore [she] moved out, did [she] pay all of

the rent that was due under the [lease agreement],” Keaton responded, “[Y]es.”

Moreover, in regard to Nowlin’s forcible-detainer action, previously filed on

June 4, 2014, Nowlin testified that the jury in that case found that Keaton had not

failed to pay her rent in a timely matter, and the trial court entered judgment in favor

of Keaton, which the Austin Court of Appeals affirmed.25 Nowlin acknowledged at

trial that the jury in her forcible-detainer action determined that Keaton did not

violate the lease agreement for making her July rent payment “late.” And when

asked whether the judgment in the forcible-detainer action stated that “Keaton did

not violate the lease [agreement by] paying late or not paying [rent] through August

2014,” Nowlin responded, “I believe that’s correct.” (Emphasis added.) Nowlin

further admitted that there was no longer any controversy concerning the amount of

rent at issue in her forcible-detainer action, i.e. Keaton’s July and August rent

payments. And an email from Keaton’s attorney to Nowlin stated that the trial court

in Nowlin’s forcible-detainer action had “stated unequivocally in open court

that . . . Keaton d[id] not owe rent to . . . Nowlin.”

25 See Nowlin, 2015 WL 3542895, at *1–8.

35 On appeal, Nowlin argues that the jury was required to answer “yes” to

Question No. 1 if Keaton did any one of the following: (1) failed to pay rent owed

to Nowlin under the lease agreement; (2) failed to pay any fees owed to Nowlin

under the lease agreement; (3) moved out of the property before the end of the lease

term without giving written notice; or (4) moved out of the property before the end

of the lease term without paying rent in full for the entire lease term. We disagree.

Notably, the trial court, in regard to Nowlin’s breach-of-lease agreement

claim, asked the jury whether Keaton failed to comply with the lease agreement by:

(1) failing to pay rent and fees owed under the lease agreement; and/or (2) moving

out of the property before the end of the lease term without giving written notice and

without paying rent in full for the entire lease term. See In re Brookeshire Grocery

Co., 250 S.W.3d 66, 69–70 (Tex. 2008) (“‘And’ is conjunctive . . . . ‘[A]nd and or

are not interchangeable . . . .’” (quoting Bayou Pipeline Corp. v. R.R. Comm’n of

Tex., 568 S.W.2d 122, 125 (Tex. 1978)); In re L.K., No. 02-18-00049-CV, 2018 WL

5832131, at *3 n.4 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.); see

also Bd. of Ins. Comm’rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908

(Tex. 1944) (“Ordinarily the words ‘and’ and ‘or,’ are in no sense interchangeable

terms[;] . . . the former being strictly of a conjunctive, the latter, of a disjunctive,

nature.”); Bridwell v. State, Nos. 05-07-00258-CR, 05-07-00259-CR 2008 WL

467271, at *7 (Tex. App.—Dallas Feb. 23, 2008, no pet.) (mem. op., not designated

36 for publication) (jury instructions which included “and/or” “presented th[e] three,

different material facts in the disjunctive” (internal quotations omitted)); Sedillo v.

Valtierra, 115 S.W.3d 52, 53 (Tex. App.—San Antonio 2003, pet. denied) (term

“and/or” can be used to imply that “either or both of the things mentioned may be

affected or involved” (emphasis added) (quoting And/or, RANDOM HOUSE

WEBSTER’S COLLEGE DICTIONARY (2d ed. 1999))); Dubose v. Reed, No.

14-94-00546-CV, 1995 WL 417049, at *3 (Tex. App.—Houston [14th Dist.] July

13, 1995, no writ) (not designated for publication) (“Question three was phrased in

both the conjunctive and disjunctive; that is, question three asked whether Dubose

‘and/or’ Virginia City owned the horse, ‘Jim.’ In other words, the jury could find

that Dubose and Virginia City jointly owned the horse in question or that either

Dubose, individually, or Virginia City owned the horse.”).

Here, the jury heard evidence that Keaton paid rent and vacated the property

only after “pay[ing] all of the rent that was due under the [lease agreement].” And

we note that the jury, as the fact finder, was the sole judge of the credibility of the

witnesses and the weight to give their testimony. City of Keller, 168 S.W.3d at 819.

Further, the jury could choose to believe one witness over another and could resolve

inconsistencies in the testimony of any witness. Id. at 819–20; McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

37 Thus, we conclude that Nowlin has not established as a matter of law that

Keaton failed to comply with the lease agreement by “[n]ot paying rent and fees” or

by “[m]oving out before the end of the lease term without giving written notice and

paying rent in full for the entire lease term.” (Emphasis added.) Accordingly, we

hold that the evidence is legally sufficient to support the jury’s failure to find that

Keaton did not comply with the lease agreement and the trial court did not err in

entering judgment in favor of Keaton on Nowlin’s claim for breach of lease

agreement.

We overrule Nowlin’s first issue.

Due to our disposition above, we need not address Nowlin’s arguments that

she “is entitled to [a] judgment as a matter of law that [Keaton] was not excused”

from failing to comply with the lease agreement and that Keaton “is liable to

[Nowlin] in [the] total amount of $20,785” on Nowlin’s breach-of-lease-agreement

claim. See TEX. R. APP. P. 47.1.

Failure to Refund Security Deposit

In her second issue, Nowlin argues that the trial court erred in entering

judgment in favor of Keaton on Keaton’s counterclaim for failure to refund security

deposit because the evidence shows that the lease agreement “provides that any rent

owed and delinquent at the time of move-out [could] be deducted from [Keaton]’s

security deposit,” Nowlin “made one deduction [from] the security deposit, in its full

38 amount of $2,000, because [Keaton] owed rent at least in the amount of $2,100 for

the month of September,” and Nowlin sent Keaton “an [a]ccounting of the deposit

that itemized and listed the sole deduction [that] she made thereto.”26 Nowlin further

asserts that Keaton was not entitled to the presumption of bad faith and there was no

evidence of “dishonesty or disregard . . . adduced at trial.”

When a party attacks the legal sufficiency of an adverse finding on an issue

for which she did not have the burden of proof, she must demonstrate that there is

no evidence to support the adverse finding. See Exxon Corp. v. Emerald Oil & Gas

Co., 348 S.W.3d 194, 215 (Tex. 2011); Examination Mgmt. Servs., Inc. v. Kersh Risk

Mgmt., Inc., 367 S.W.3d 835, 839 (Tex. App.—Dallas 2012, no pet.). We will

sustain a legal sufficiency or “no-evidence” challenge if the record shows any one

of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law

or evidence bar the court from giving weight to the only evidence offered to prove a

vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or

(4) the evidence establishes conclusively the opposite of the vital fact. City of Keller,

168 S.W.3d at 810. In conducting a legal-sufficiency review, we consider the

26 To the extent that Nowlin asserts that the trial court erred in denying her motion for summary judgment on Keaton’s failure-to-refund-security-deposit counterclaim, we note that after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, 226 S.W.3d at 509.

39 evidence in the light most favorable to the verdict and indulge every reasonable

inference that supports it. Id. at 822. The term “inference” means,

[i]n the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston

[1st Dist.] 1993, writ dism’d w.o.j.) (internal quotations omitted). “For a jury to

infer a fact, it must be able to deduce that fact as a logical consequence from other

proven facts.” Id.

If there is more than a scintilla of evidence to support the challenged finding,

we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,

Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered to prove a vital

fact is so weak as to do no more than create a mere surmise or suspicion of its

existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (internal

quotations omitted). However, if the evidence at trial would enable reasonable and

fair-minded people to differ in their conclusions, then jurors must be allowed to do

so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot substitute its

judgment for that of the trier-of-fact, so long as the evidence falls within th[e] zone

of reasonable disagreement.” Id.

40 Again, the jury, as the fact finder, is the sole judge of the credibility of the

witnesses and the weight to give their testimony. Id. at 819. It may choose to believe

one witness over another. Id. A reviewing court must assume that the jury resolved

all conflicts in the evidence in accordance with its decision if a reasonable fact finder

could have done so. See id. at 820. A reviewing court may not “impose [its] own

opinions to the contrary” or “substitute its judgment for that of the [jury].” Id. at

819, 822. The jury “may disregard even uncontradicted and unimpeached testimony

from disinterested witnesses,” so long as the decision to disregard is reasonable. Id.

Chapter 92, subchapter C of the Texas Property Code governs security

deposits in residential leases. See TEX. PROP. CODE ANN. §§ 92.101–.110. A

security deposit is defined as “any advance of money, other than a rental application

deposit or an advance payment of rent, that is intended primarily to secure

performance under a lease of a dwelling.” Id. § 92.102.

A landlord is required to refund a security deposit to the tenant on or before

the thirtieth day after the date the tenant surrenders the premises. Id. § 92.103(a).

However, before returning a security deposit, the landlord may deduct from the

security deposit damages and charges for which the tenant is legally liable under the

lease agreement or as a result of breaching the lease agreement. Id. § 92.104(a). The

41 landlord may not retain any portion of the security deposit to cover normal wear and

tear. Id. § 92.104(b).

If the landlord retains all or part of the security deposit, the landlord shall give

the tenant, within thirty days of the tenant’s surrender of the premises: (1) the

balance of the security deposit, if any; (2) a written description of the damages; and

(3) an itemized list of all deductions. Id. § 92.104(c). However, the landlord is not

obligated to return a tenant’s security deposit or give the tenant a written description

of the damages and an itemized list of the deductions until the tenant gives the

landlord a written statement of the tenant’s forwarding address for the purpose of

returning the security deposit. Id. § 92.107(a).

Chapter 92, subchapter C of the Texas Property Code establishes two causes

of action that permit a tenant to seek recovery of her security deposit from her

landlord. See id. § 92.109 (liability of landlord). Each of these causes of action

provides the tenant with a different remedy. Relevant to this case, the first cause of

action involves a landlord’s bad faith retention of the security deposit. See id.

§ 92.109(a). To prevail under that cause of action, the tenant must prove that the

landlord: (1) acted in bad faith and (2) retained the security deposit in violation of

chapter 92, subchapter C of the Texas Property Code. Id. When a landlord is found

liable under section 92.109(a), the tenant may recover from the landlord: (1) an

amount equal to the sum of $100; (2) three times the portion of the security deposit

42 wrongfully withheld; and (3) the tenant’s reasonable attorney’s fees in a suit to

recover the security deposit. Id.

When a tenant sues a landlord to recover her security deposit under the above

cause of action, the tenant must prove the landlord acted in bad faith. See id.

§ 92.109(a), (b). Bad faith is presumed when a landlord fails to: (1) return the

security deposit or (2) provide a written description of the damages and an itemized

list of all deductions within thirty days after the tenant surrenders the premises. Id.

§ 92.109(d). A landlord acts in bad faith when she retains the security deposit in

dishonest disregard of the tenant’s rights. See Pulley v. Milberger, 198 S.W.3d 418,

428 (Tex. App.—Dallas 2006, pet. denied). Bad faith implies an intention to deprive

the tenant of a lawfully due refund. See Pulley, 198 S.W.3d at 428; Leskinen v.

Burford, 892 S.W.2d 135, 136 (Tex. App.—Houston [14th Dist.] 1994, no writ).

Absent rebutting evidence, the presumption that the landlord acted in bad faith

compels a finding of bad faith. See Pulley, 198 S.W.3d at 428. Even when a landlord

defeats the presumption of bad faith as to the failure to return a security deposit, the

landlord still must prove the retention of any portion of the security deposit was

reasonable. See TEX. PROP. CODE ANN. § 92.109(c); Pulley, 198 S.W.3d at 429.

Here, in Question No. 4 of its charge, the trial court asked the jury, related to

Keaton’s failure-to-return-security-deposit counterclaim:

Did LINDA S. NOWLIN wrongfully fail to refund any portion of LORI KEATON’s security deposit? 43 A security deposit is any advance of money, other than a rental application deposit or an advance payment of rent, that is intended primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant. A landlord shall refund the security deposit to the tenant not later than the 30th day after the date the tenant surrenders the premises.

Before returning the security deposit, the 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, but may not retain any portion of a security deposit to cover normal wear and tear. “Normal wear and tear” means deterioration that results from the intended use of a dwelling, including breakage or malfunction due to age or deteriorated condition, but does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises by a member of the tenant’s household, or by a guest or invitee of the tenant.

If the landlord retains all or part of a security deposit under this section, 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.

The landlord is not obligated to return a tenant’s security deposit or give the tenant a written description 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. The tenant does not forfeit the right to a refund of the security deposit or the right to receive a description of damages and charges merely for failing to give a forwarding address to the landlord.

Answer “Yes” or “No.”[27]

The jury answered: “Yes.”

27 Nowlin raised no objection in the trial court to Question No. 4.

44 On October 4, 2014, Nowlin sent Keaton an email with a subject line stating:

“Security Deposit Accounting.” That email states, in part:

I am sending this to the last known email address I have for you because you did not designate a physical forwarding address after you moved out, as required by the lease agreement. The lease requires that I send you an accounting of your security deposit within thirty days of your leaving the property. That accounting is as follows:

Because you have unpaid rent that exceeds your $2,000.00 security deposit, you are not entitled to a refund of any portion thereof.

Nowlin admitted that her October 4, 2014 email did not “provide an itemized list of

Nowlin argues that the evidence is legally insufficient to support the jury’s

finding that she wrongfully failed to refund any portion of Keaton’s security deposit

because the lease agreement “provides that any rent owed and delinquent at the time

of move-out [could] be deducted from [Keaton]’s security deposit” and Nowlin

“made one deduction [from] the security deposit, in its full amount of $2,000,

because [Keaton] owed rent at least in the amount of $2,100 for the month of

September at the time she abandoned the [p]roperty.”

However, as discussed related to Nowlin’s first issue, the jury heard evidence

that Keaton paid rent and vacated the property only after “pay[ing] all of the rent

that was due under the [lease agreement].” In other words, the record contains

evidence that Keaton did not owe rent, including her September 2014 rent payment,

at the time she vacated the property. And the jury, as the fact finder, was the sole 45 judge of the credibility of the witnesses and the weight to give their testimony. City

of Keller, 168 S.W.3d at 819. It could choose to believe one witness over another

and could resolve inconsistencies in the testimony of any witness. Id.; McGalliard,

722 S.W.2d at 697.

Here, we cannot say that the jury’s finding that Nowlin wrongfully failed to

refund any portion of Keaton’s security deposit is not supported by more than a

scintilla of evidence.

In Question No. 6 of its charge, the trial court asked the jury, related to

Did LINDA S. NOWLIN fail to refund any portion of LORI KEATON’s security deposit in bad faith?

You are instructed that a landlord acts in “bad faith” when he or she retains a security deposit in dishonest disregard of the tenant’s rights or with the intent to deprive the tenant of a lawfully due refund.

A landlord who fails to return a security deposit or give a written description and itemized list of all deductions on or before the 30th day after the tenant surrenders possession and provides a forwarding address is presumed to have acted in bad faith. To defeat this presumption, a landlord must prove [her] “good faith,” which means honesty in fact in the conduct or transaction concerned.

Answer “Yes” or “No.”[28]

28 Nowlin raised no objection in the trial court to Question No. 6.

46 In a single conclusory paragraph in her brief, Nowlin argues that the evidence

is legally insufficient to support the jury’s finding that she failed to refund any

portion of Keaton’s security deposit in bad faith because the presumption of bad

faith does not apply. And absent the presumption, Keaton was required to prove that

Nowlin “retained some portion of the security deposit in dishonest disregard of

[Keaton]’s rights.” Here, according to Nowlin, no evidence of such dishonesty or

disregard was adduced at trial.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief

“contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “This is not done

by merely uttering brief conclusory statements, unsupported by legal citations.”

Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr.

Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (appellant

bears burden of discussing assertions of error). A failure to provide substantive

analysis of an issue or cite appropriate authority waives a complaint on appeal.

Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San

Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas

2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221

S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

47 Nevertheless, in regard to the merits of Nowlin’s argument, we note that, even

without taking into account the presumption of bad faith, the jury, in the instant case,

heard evidence that Nowlin refused to refund any portion of Keaton’s security

deposit even though Nowlin had: (1) placed “a hold” on her deposit accounts

preventing Keaton from paying her rent by the method prescribed by the lease

agreement, (2) specifically told Keaton that “she would never accept [her] rent,”

including Keaton’s September 2014 rent payment, and (3) lost her forcible-detainer

action, wherein the jury found that Keaton had not failed to timely pay her rent and

she had not “violate[d] the lease [agreement by] paying late or not paying [rent]

through August 2014.” (Emphasis added.) And the jury heard evidence that Keaton

had actually paid rent and vacated the property only after “pay[ing] all of the rent

that was due under the [lease agreement].”

The trial court’s charge to the jury in Question No. 6 defined “bad faith” as

follows: “[A] landlord acts in ‘bad faith’ when he or she retains a security deposit

in dishonest disregard of the tenant’s rights or with the intent to deprive the tenant

of a lawfully due refund.” We cannot say that the jury’s finding that Nowlin failed

to refund any portion of Keaton’s security deposit in bad faith is not supported by

more than a scintilla of evidence.

Accordingly, we hold that the evidence is legally sufficient to support the

jury’s findings that Nowlin “wrongfully fail[ed] to refund any portion

48 of . . . Keaton’s security deposit” and “fail[ed] to refund any portion of . . . Keaton’s

security deposit in bad faith” and the trial court did not err in entering judgment in

favor of Keaton on Keaton’s counterclaim for failure to refund security deposit.

We overrule Nowlin’s second issue.

Due to our disposition above, we need not address Nowlin’s argument that

that the jury’s finding in response to Question No. 5, i.e., that Nowlin wrongfully

failed to refund $2,000 of Keaton’s security deposit, should be disregarded because

Nowlin, as a matter of law, did not wrongfully fail to refund any portion of Keaton’s

security deposit. See TEX. R. APP. P. 47.1; see also TEX. R. APP. P. 38.1(i); Tesoro

Petroleum Corp., 106 S.W.3d at 128.

Retaliation

In her third issue, Nowlin argues that the trial court erred in entering judgment

in favor of Keaton on Keaton’s counterclaim for retaliation because Keaton was

required to prove “retaliatory intent . . . by offering evidence of it other than her own

bare, self-serving speculation about [Nowlin]’s motives,” Nowlin provided reasons

for serving her three notices to vacate on Keaton, Keaton’s “defending herself

49 against eviction c[ould] only have caused the second or third notice to vacate,” and

“[t]ransmitting a notice to vacate is not a prohibited action.”29

As previously noted, when a party attacks the legal sufficiency of an adverse

finding on an issue for which she did not have the burden of proof, she must

demonstrate that there is no evidence to support the adverse finding. See Exxon

Corp., 348 S.W.3d at 215; Examination Mgmt. Servs., 367 S.W.3d at 839. If there

is more than a scintilla of evidence to support the challenged finding, we must uphold

it. Formosa Plastics Corp., 960 S.W.2d at 48.

Chapter 92 of the Texas Property Code prohibits retaliation by a landlord

against a tenant and provides a tenant with a right to recover against a landlord who

retaliates. See TEX. PROP. CODE ANN. § 92.331; see also Dall. Hous. Auth. v. Nelson,

05-13-00818-CV, 2015 WL 1261953, at *3 (Tex. App.—Dallas Mar. 19, 2015, pet.

denied) (mem. op.); San Antonio Hous. Auth. Found., Inc. v. Smith, No.

04-10-00759-CV, 2011 WL 3627699, at *2 (Tex. App.—San Antonio Aug. 17,

2011, no pet.) (mem. op.). Texas Property Code section 92.331(a) provides:

A landlord may not retaliate against a tenant by taking an action described by [s]ubsection (b) because the tenant: (1) in good faith exercises or attempts to exercise against a landlord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state

29 To the extent that Nowlin asserts that the trial court erred in denying her motion for summary judgment on Keaton’s retaliation counterclaim, we note that after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, 226 S.W.3d at 509.

50 statute[] [or] (2) gives a landlord a notice to repair or exercise a remedy under this chapter.

TEX. PROP. CODE ANN. § 92.331(a). Section 92.331(b) further provides:

[The] landlord may not, within six months after the date of the tenant’s action under [s]ubsection (a), retaliate against the tenant by: (1) filing an eviction proceeding, except for the grounds stated by Section 92.332; (2) depriving the tenant of the use of the premises, except for reasons authorized by law; (3) decreasing services to the tenant; (4) increasing the tenant’s rent or terminating the tenant’s lease; or (5) engaging, in bad faith, in a course of conduct that materially interferes with the tenant’s rights under the tenant’s lease.

Id. § 92.331(b).

In Question No. 7 of its charge, the trial court asked the jury, related to

Keaton’s retaliation counterclaim:

Did LINDA S. NOWLIN retaliate against LORI KEATON?

You are instructed that:

a. A landlord may not retaliate against a tenant by taking an action described under (b) because the tenant: 1. in good faith exercises or attempts to exercise against a landlord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute; or 2. gives a landlord a notice to repair or exercise a remedy under this chapter.

b. A landlord may not, within six months after the date of the tenant’s action under (a), retaliate against the tenant by:

51 1. filing an eviction proceeding, except as stated below in (c) or (d); 2. increasing the tenant’s rent or terminating the tenant’s lease; or 3. engaging in bad faith, in a course of conduct that materially interferes with the tenant’s rights under the tenant’s lease.

c. The landlord is not liable for retaliation if the landlord proves that the action was not for purposes of retaliation.

d. Eviction or lease termination based on the following circumstances, which are valid grounds for eviction or lease termination in any event, does not constitute retaliation. 1. the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action; 2. the tenant, a member of the tenant’s family, or a guest or invitee of the tenant intentionally damages property on the premises.

Answer “Yes” or “No.”[30]

In her third amended answer and counterclaims, Keaton alleged, in part,

related to her retaliation counterclaim, that after she prevailed in Nowlin’s

forcible-detainer action, Nowlin, in retaliation, served Keaton with the September 4,

2014 notice to vacate. See generally Nelson, 2015 WL 1261953, at *3 (evidence of

retaliation where “within a few days of the judgment in [tenant]’s favor in

[landlord’s] previous eviction action, [landlord] served its third or fourth notice of

eviction”); Holmes v. Al Jaafreh, Nos. 10-11-00148-CV to 10-11-00154-CV, 01-14-

30 Nowlin raised no objection in the trial court to Question No. 7.

52 00313-CV, 2013 WL 2395106, at *8 (Tex. App.—Waco May 30, 2013, no pet.)

(mem. op.) (tenant asserted landlord retaliated by interrupting tenant’s utilities after

tenant prevailed in landlord’s eviction suit). At trial, the jury heard evidence that

Nowlin, on June 4, 2014, filed a forcible-detainer action against Keaton, alleging

that Keaton had breached the lease agreement by unreasonably refusing to allow

Nowlin or her agents to enter the property to make repairs or perform maintenance

and by failing to pay her rent in a timely manner. The jury in Nowlin’s

forcible-detainer action found, on August 27, 2014, that Keaton had not

unreasonably refused to allow Nowlin or her agents to enter the property and that

Keaton had not failed to pay her rent in a timely manner. And the trial court entered

judgment in favor of Keaton in that case. When asked whether the judgment in the

forcible-detainer action stated that “Keaton did not violate the lease [agreement by]

paying late or not paying [rent] through August 2014,” Nowlin testified, “I believe

that’s correct.”

After the jury rendered its verdict in Nowlin’s forcible-detainer action,

Nowlin, on September 4, 2014, served Keaton with a notice to vacate. See generally

Nelson, 2015 WL 1261953, at *3. The September 4, 2014 notice to vacate states, in

part:

Re: TAA Lease Contract dated 4/12/14 between [Keaton] and Linda Nowlin (owner)[.]

You are in arrears on your rental payments in the amount of $6,300.00. 53 Because of your continued violations of the Lease Agreement, including your refusal to provide entry for maintenance upon demand and your non-payment of rent, your residency is terminated effective immediately. You are hereby given notice to vacate the premises before 11:59, p.m., [September] 5, 2014, which is at least one day from the delivery of this notice in accordance with your lease contract. Failure to move out by then will result in an eviction suit being filed against you. Delay or postponement of such action does not waive our rights. You are liable for all rent due under the full term of your contract, damages to the premises, legal fees and any other charges due under the terms of your agreement.

Nowlin argues that “the transmission” of the September 4, 2014 notice to

vacate could not “form the basis for a [counter]claim of retaliation” because “it [was]

indisputable that [Keaton] was delinquent on rent at least in the amount of $2,100

by that date,” making the notice “statutorily exempt from forming the basis of a

retaliation claim,” and Keaton did not vacate the property because she received the

September 4, 2014 notice to vacate.

Here, the jury was charged that an “[e]viction or lease termination” would not

constitute retaliation where “[a] tenant [was] delinquent in rent when the landlord

g[ave] notice to vacate or file[d] an eviction action.” See TEX. PROP. CODE ANN.

§ 92.332(b)(1). However, as previously addressed, in the instant case, the jury heard

evidence that Keaton was not delinquent in her rent at the time Nowlin served the

September 4, 2014 notice to vacate; in fact, it heard evidence that Keaton had “pa[id]

all of the rent that was due under the [lease agreement]” prior to vacating the

property. Evidence that Keaton was current on her rent payments at the time that 54 Nowlin served her with the September 4, 2014 notice to vacate negates the exception

that an “[e]viction or lease termination” based on the failure to pay rent cannot

constitute retaliation. See generally Nelson, 2015 WL 1261953, at *3; cf. Williams

v. Hous. Corp. of Greater Hous., Civil Action No. H-14-2309, 2016 WL 5795136,

at *9 (S.D. Tex. Sept. 16, 2016) (tenant could not prevail on retaliation claim where

she offered no evidence to show that she was current in rent payments at the time

landlord filed eviction proceeding); Wilson v. Woodland Hills Apartments, No.

05-16-01093-CV, 2017 WL 5897900, at *3 (Tex. App.—Dallas Nov. 29, 2017, pet.

denied) (mem. op.) (no retaliation where evidence showed tenant delinquent in his

rent at time landlord served notice to vacate).

Further, Nowlin argues that her September 4, 2014 notice to vacate could not

form the basis of Keaton’s counterclaim for retaliation because a notice to vacate

can only constitute a termination of a lease agreement if the tenant vacates after

receiving the notice and “for that reason.” (Emphasis omitted.) Although Nowlin

asserts that Keaton did not vacate the property because she received the September

4, 2014 notice to vacate, and thus the notice to vacate could not support a

counterclaim for retaliation, we note that Nowlin, in her brief, provides no support,

authority, or analysis for her conclusory argument.

As previously stated, Texas Rule of Appellate Procedure 38.1(i) requires that

an appellant’s brief “contain a clear and concise argument for the contentions made,

55 with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

“This is not done by merely uttering brief conclusory statements, unsupported by

legal citations.” Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Barham, 803

S.W.2d at 740. A failure to provide substantive analysis of an issue or cite

appropriate authority waives a complaint on appeal. Marin Real Estate Partners,

373 S.W.3d at 75; Huey, 200 S.W.3d at 854; Cervantes-Peterson, 221 S.W.3d at

255.

Based on the foregoing, we cannot say that the jury’s finding that Nowlin

retaliated against Keaton is not supported by more than a scintilla of evidence.

Accordingly, we hold that the evidence is legally sufficient to support the jury’s

finding that Nowlin retaliated against Keaton.

We overrule Nowlin’s third issue.

We note that Nowlin, in passing in her brief, asserts that Keaton “failed

adequately to allege a [counter]claim for retaliation.” To the extent that Nowlin

attempts to advance this argument on appeal, we conclude that it is waived. See

TEX. R. APP. P. 38.1(i); Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Huey,

200 S.W.3d at 854.

Other Property Code Violations

In her fourth issue, Nowlin argues that the trial court erred in entering

judgment in favor of Keaton on Keaton’s counterclaims for violations of Texas

56 Property Code sections 92.153(a)(3) and (a)(5), 92.157(a)(2), and 92.158 because

the evidence shows that Nowlin “installed a keyless bolting device on the [front]

door . . . on May 23, 2014” and “all exterior sliding glass doors providing entrance

to the [p]roperty were always equipped with security bars” and there is no evidence

that Keaton made “written requests for compliance with the [Texas] Property Code,

or for repair or installation of any of the security devices.” 31 Further, Nowlin asserts

that she cannot be held liable for failing to repair the handle latches on the exterior

sliding glass doors because the doors all had security bars.

As previously noted, when a party attacks the legal sufficiency of an adverse

finding on an issue for which she did not have the burden of proof, she must

demonstrate that there is no evidence to support the adverse finding. See Exxon

Corp., 348 S.W.3d at 215; Examination Mgmt. Servs., 367 S.W.3d at 839. If there

is more than a scintilla of evidence to support the challenged finding, we must uphold

Texas Property Code section 92.153 requires a landlord to equip a dwelling

with certain security devices, including “a sliding door pin lock on each exterior

31 To the extent that Nowlin asserts that the trial court erred in denying her motion for summary judgment on Keaton’s counterclaims for violations of Texas Property Code sections 92.153(a)(3) and (a)(5), 92.157(a)(2), and 92.158, we note that after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal. Ackermann, 403 S.W.2d at 365; Tricon Tool & Supply, 226 S.W.3d at 509.

57 sliding glass door of the dwelling” and “a keyless bolting device . . . on each exterior

door of the dwelling.” TEX. PROP. CODE ANN. § 92.153(a)(3), (a)(5). If a landlord

does not comply with section 92.153, a tenant may “serve a written request for

compliance on the landlord, and . . . if the landlord does not comply on or before the

third day after the date the notice is received, [the tenant may] file suit against the

landlord and obtain a judgment for . . . actual damages[,] . . . a civil penalty of one

month’s rent plus $500,” and attorney’s fees. Id. § 92.164(a)(4); Lemus v.

Cookscreek 255, LLC, No. 05-17-01085-CV, 2018 WL 6259480, at, *3 *9 (Tex.

App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (Texas Property Code section

92.164 sets out tenant remedies for a landlord’s failure to install security devices

listed in Property Code section 92.153); Hernandez v. Gallardo, 458 S.W.3d 544,

549 (Tex. App.—El Paso 2014, pet. denied).

Texas Property Code section 92.157 requires a landlord, upon a tenant’s

request, to install “a sliding door handle latch or sliding door security bar if the door

is an exterior sliding glass door without a sliding door handle latch or sliding door

security bar.” TEX. PROP. CODE ANN. § 92.157(a)(2). Texas Property Code section

92.158 requires a landlord to “repair or replace a security device on request or

notification by the tenant that the security device is inoperable or in need of repair

or replacement.” Id. § 92.158. If a landlord does not comply with section 92.157 or

section 92.158, a tenant may “file suit against the landlord and obtain a judgment

58 for . . . actual damages[,] . . . a civil penalty of one month’s rent plus $500,” and

attorney’s fees. Id. § 92.165(3).

In Question No. 8 of its charge, the trial court asked the jury, related to

Keaton’s counterclaims for violations of Texas Property Code sections 92.153(a)(3)

and (a)(5), 92.157(a)(2), and 92.158:

Did LINDA S. NOWLIN fail to do any of the following within a reasonable time, presumed to be seven days, after receiving a written request?

Answer “Yes” or “No” for each:

a. Install a keyless dead bolt on the main entrance of the premises.

b. Install a sliding door pin lock for any exterior sliding glass door without a sliding door pin lock.

c. Install a sliding door security bar for any exterior sliding glass door without a sliding door security bar.

d. Repair and replace the sliding door handle latch on any exterior sliding glass door.[32]

The jury answered: “Yes” for each.

A. Keyless Dead Bolt Lock

Nowlin concedes that on May 19, 2014, Keaton requested the installation of

a keyless dead bolt lock on the property’s front door. Nowlin argues that the

evidence is legally insufficient to support the jury’s finding that she failed to install

32 Nowlin raised no objection in the trial court to Question No. 8.

59 a keyless dead bolt lock on the property’s front door because the evidence shows

that Nowlin “installed a keyless bolting device” and Keaton was required to prove

that the lock that was installed by Nowlin did not constitute a keyless dead bolt lock.

Keaton testified that she requested the installation of a keyless dead bolt lock

on the front door of the property. However, according to Keaton, the lock that

Nowlin’s contractors actually installed on the front had a keyhole, which Nowlin

“wanted [Keaton] to consider [to be] keyless.” In other words, Keaton testified that

instead of a keyless dead bolt lock, a “keyed” dead bolt lock was installed on the

property’s front door. Although Keaton did not have the key for the lock, she

explained that the lock had been manufactured with a key. Maughan, a handyman

who installed the lock on the front door, testified that the lock that he installed on

the door had a keyhole.

Although Nowlin and Maughan also testified that the lock that was installed

on the property’s front door could not be operated from the outside, and, thus,

functioned as a keyless dead bolt lock, the jury, as the fact finder, was the sole judge

of the credibility of the witnesses and the weight to give their testimony. City of

Keller, 168 S.W.3d at 819. And it could choose to believe one witness over another

and could resolve inconsistencies in the testimony of any witness. Id.; McGalliard,

60 Further, to the extent that Nowlin asserts that the lock actually installed on the

property’s front door “constitute[d] a keyless bolting device under the definition

provided by” Texas Property Code section 92.151, we note that the trial court, in its

charge to the jury, did not define the term “keyless dead bolt,” and Nowlin did not

object to the lack of a definition. Moreover, the court instructed the jury: “If [the]

instructions use a word in a way that is different from its ordinary meaning, use the

meaning [that the court] give[s] you, which will be a proper legal definition.” Thus,

here, we must measure the sufficiency of the evidence against the

commonly-understood meaning of “keyless dead bolt.” See Jerry L. Starkey, TBDL,

L.P. v. Graves, 448 S.W.3d 88, 109 (Tex. App.—Houston [14th Dist.] 2014, no pet.);

Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex. App.—Houston [14th Dist.] 2008,

no pet.); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding, when

no objection is made to jury issue, sufficiency of evidence is measured against

charge given by court rather than some other unidentified law).

As charged, we cannot say that the jury’s finding that Nowlin, within a

reasonable time after receiving a written request, failed to “[i]nstall a keyless dead

bolt on the main entrance of the premises” is not supported by more than a scintilla

of evidence. Accordingly, we hold that the evidence is legally sufficient to support

the jury’s finding that Nowlin failed to install a keyless deadbolt lock.

61 B. Pin Locks

Nowlin appears to concede that she never actually installed any pin locks at

the property. However, she argues that the evidence is legally insufficient to support

the jury’s findings that she, within a reasonable time after receiving a written request,

failed to “[i]nstall a sliding door pin lock [on] any exterior sliding glass door

without” one, because there is no evidence that Keaton ever made a request for

compliance with Texas Property Code section 92.153(a)(3) or a request for the

installation of pin locks on any door.

The trial court, in its charge to the jury, did not define the term “request” and

Nowlin did not object to the lack of a definition. As noted previously, the trial court

instructed the jury: “If [the] instructions use a word in a way that is different from

its ordinary meaning, use the meaning [that the court] give[s] you, which will be a

proper legal definition.” Thus, here, we must measure the sufficiency of the

evidence against the commonly-understood meaning of the word “request.” See

Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d at 323; see also Osterberg, 12

S.W.3d at 55.

The lease agreement stated that Nowlin was required by Texas law to provide

pin locks on the exterior sliding glass doors at the property. And Nowlin

acknowledged that none of the exterior sliding glass doors had pin locks at the time

that she purchased the property.

62 Keaton, on her inventory and condition form, which she completed at the

beginning of the lease term and which Nowlin signed, stated that the exterior sliding

glass doors at the property did not have pin locks. And Nowlin conceded that

Keaton’s inventory and condition form listed items at the property that were

damaged or in need of repair.

Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of

the violations that [Nowlin] had committed according to the [Texas] Property Code.”

Specifically, in that letter, Keaton told Nowlin that she had not “install[ed] a sliding

door pin lock on each exterior sliding glass door of the [property].” And Keaton

stated, that the June 11, 2014 letter, in addition to the lease agreement, inventory and

condition form, was intended to notify Nowlin of that failure.

Moreover, in her July 28, 2014 email to Nowlin, Keaton stated: “[P]erhaps

you might plan services and repairs which are needed, such as installing a keyless

deadbolt on the front door, locks on the sliding glass doors, or the light fixture

outside the front door. Those are much more urgent than termite treatment for a

house that has been inspected specifically for termites in the last three months and

found to be without termites.” (Emphasis added.)

The definition of the word “request,” as a verb, is: “[t]o ask for (something);

to solicit; to make a request to or of (one); followed by an infinitive.” Byars v. Byars,

182 S.W.2d 363, 364 (Tex. 1944) (internal quotations omitted). The definition of

63 the word “request,” as a noun is: “[a]ct or instance of asking for something or some

action desired; expression of desire; entreaty; petition; that which is asked for.” Id.

(internal quotations omitted); see also Request, WEBSTER’S NEW WORLD COLLEGE

DICTIONARY (5th ed. 2014) (defining “request” as a verb as “to express a wish or

desire for; ask for[;] . . . to ask a person to do something”; defining “request” as a

noun as “the act of asking, or expressing a desire, for something”).

As charged, we cannot say that the jury’s finding that Keaton made a “request”

for the “[i]nstall[ation of] a sliding door pin lock for any exterior sliding glass door

without a sliding door pin lock” is not supported by more than a scintilla of evidence.

Accordingly, we hold that the evidence is legally sufficient to support the jury’s

finding that Nowlin failed to install a pin lock.

C. Security Bars

Nowlin first asserts that Keaton did not adequately plead her counterclaim for

failure “to install security bars on certain [exterior] sliding glass doors in violation

of [Texas Property Code section] 92.157.”

A trial court must submit jury questions that are raised by the written

pleadings and the evidence. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992);

Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 823 (Tex. App.—

Houston [1st Dist.] 1999, pet. denied); see also TEX. R. CIV. P. 278. To support

submission of a jury question, a party’s pleadings must give the opposing party fair

64 and adequate notice of the facts upon which the pleader relies so that the opposing

party has sufficient notice and information to prepare her defense. Murray v. O &

A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Rosenbloom Mach., 995 S.W.2d

at 823. Thus, in determining whether Keaton’s pleadings were sufficient to support

a question on Nowlin’s failure to install a security bar, we focus on the notice

Keaton’s pleadings provided Nowlin, and her opportunity to prepare a defense on

Keaton’s counterclaim that Nowlin violated Texas Property Code section

92.157(a)(2) by failing to install a security bar.

Pleadings must “[c]onsist of a statement in plain and concise language of the

[party]’s cause of action.” Willock v. Bui, 734 S.W.2d 390, 392 (Tex. App.—

Houston [1st Dist.] 1987, no writ) (first alteration in original) (internal quotations

omitted); see also TEX. R. CIV. P. 45(b); Rosenboom Mach., 995 S.W.2d at 823. Fair

notice has been given if the pleadings are sufficiently specific so that an opposing

party can ascertain from the pleadings the nature and basic issues of the controversy

and the probable relevant testimony. Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 896 (Tex. 2000); Estate of Menifee v. Barrett, 795 S.W.2d 810, 812

(Tex. App.—Texarkana 1990, no writ); see also Rosenboom Mach., 995 S.W.2d at

823–24.

Keaton, in her third amended answer and counterclaims, alleged that Nowlin

“violated Texas Property Code section 92.157(a)(2) when she refused to comply

65 with [Keaton]’s June 11, 2014[] request for the installation of a . . . security bar on

th[e] exterior sliding glass doors.” Further, Keaton pleaded that she sought damages

“under Texas Property Code section 92.164(a)(4), in the amount of $7,800, which

represents the statutory penalty of one month’s rent ($2,100) plus $500[,] multiplied

by four doors,” and attorney’s fees.

Nowlin asserts that Keaton did not “ma[k]e an adequate allegation of liability

for failing to install security bars” because she referenced the wrong Texas Property

Code section under which she would be entitled to damages. Compare TEX. PROP.

CODE ANN. § 92.164(a)(4), with id. § 92.165(3). However, a pleading may still

provide adequate and fair notice to the opposing party even where it refers to the

wrong section of a statute. See Auld, 34 S.W.3d at 896–97 (party’s answer “pleaded

sufficient facts to give adequate and fair notice to [opposing party] . . . even though

the pleading referred to an incorrect version of the statute”); Tex. State Bd. of

Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 703 (Tex. App.—Austin

2013, no pet.); see also CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc.,

809 S.W.2d 577, 586 (Tex. App.—Dallas 1991, writ denied) (“A pleading that gives

adequate notice will not fail merely because the draftsman named it improperly.”).

We conclude that Keaton’s pleadings provided sufficient notice to Nowlin of

Keaton’s counterclaim for a violation of Texas Property Code section 92.157(a)(2)

by failing to install a security bar.

66 Nowlin next argues that the evidence is legally insufficient to support the

jury’s findings that she, within a reasonable time after receiving a written request,

failed to “[i]nstall a sliding door security bar for any exterior sliding glass door” that

lacked one, because there is no evidence that Keaton ever made a request for

compliance with Texas Property Code section 92.157(a)(2) or a request for the

installation of a security bar on any exterior sliding glass door.

As previously addressed, because the trial court, in its charge to the jury, did

not define the term “request” and Nowlin did not object to the lack of a definition,

we measure the sufficiency of the evidence against the commonly-understood

meaning of the word “request.” See Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d

at 323; see also Osterberg, 12 S.W.3d at 55.

The lease agreement stated that Nowlin was required by Texas law to provide

either a handle latch or a security bar on each exterior sliding glass door at the

property. Keaton, on her inventory and condition form, which she completed at the

beginning of the lease term and which Nowlin signed, stated that only two of the

upstairs exterior sliding glass doors had security bars. And Nowlin conceded that

Keaton’s inventory and condition form listed items at the property that were

Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of

the violations that [Nowlin] had committed according to the [Texas] Property Code.”

67 Specifically, in that letter, Keaton told Nowlin that she had not installed “a sliding

door security bar on each exterior sliding glass door of the [property].” And Keaton

stated, that the June 11, 2014 letter, in addition to the lease agreement and the

inventory and condition form, was intended to notify Nowlin of her failure. Nowlin

confirmed at trial that Keaton, in her June 11, 2014 letter, had referred to the lack of

security bars on the exterior sliding glass doors at the property. Moreover, in a July

28, 2014 email to Nowlin, Keaton notified Nowlin that the “locks on the [exterior]

sliding glass doors” were in need of urgent “services and repairs.”

As charged, we cannot say that the jury’s finding that Keaton made a “request”

for the “[i]nstall[ation of] a sliding door security bar for any exterior sliding glass

door” is not supported by more than a scintilla of evidence.

Nowlin further argues that the evidence is legally insufficient to support the

jury’s finding that she failed to “[i]nstall a sliding door security bar for any exterior

sliding glass door without a sliding door security bar” because the evidence clearly

established that all exterior sliding glass doors were always equipped with security

bars, i.e. “a wooden bar or plastic rod that could be placed at the bottom of the

interior side of the fixed panel of the door,” the pieces of wood or PVC pipe that laid

at the bottom of the exterior sliding glass doors constituted security bars as defined

by the Texas Property Code, and Keaton admitted on her inventory and condition

form that at least two of the sliding glass doors were equipped with security bars.

68 The trial court, in its charge to the jury, did not define the term “security bar,”

and Nowlin did not object to the lack of a definition. As noted previously, the trial

court instructed the jury: “If [the] instructions use a word in a way that is different

from its ordinary meaning, use the meaning [that the court] give[s] you, which will

be a proper legal definition.” Thus, we measure the sufficiency of the evidence

against the commonly-understood meaning of the word “security bar.” See Graves,

448 S.W.3d at 109; Brown, 267 S.W.3d at 323; see also Osterberg, 12 S.W.3d at 55.

The lease agreement stated that Nowlin was required by Texas law to provide

either a handle latch or a security bar on each exterior sliding glass door at the

property. With respect to the exterior sliding glass doors on the property, Nowlin

testified that the only devices securing the exterior sliding glass doors were pieces

of wood or PVC pipe laid at the bottom of the doors. Nowlin stated that she never

purchased security bars, such as those available at home improvement stores, for the

exterior sliding glass doors because she considered the pieces of wood or the PVC

pipe that laid at the bottom of the doors to constitute security bars. However, Nowlin

conceded that she was “not sure [whether] placing a PVC pipe in at an angle or a

piece of wood” actually secured the exterior sliding glass doors, and she noted that

the security bars that would “go across the middle of [a] door” would provide

additional security for the property. In fact, Nowlin had actually installed such

security bars at other properties that she owned.

69 Further, Nowlin confirmed that Keaton referred to the lack of security bars on

the exterior sliding glass doors in her June 11, 2014 letter to Nowlin. And in a July

28, 2014 email to Nowlin, Keaton notified her that the “locks on the [exterior] sliding

glass doors” were in need of repair or servicing.

With respect to the exterior sliding glass doors on the property, Keaton

testified that there were four—three upstairs and one downstairs—and all of the

sliding glass doors lacked appropriate security bars. Although Keaton, on her

inventory and condition form, which she completed at the beginning of the lease

term, noted that two of the upstairs exterior sliding glass doors had security bars,

Keaton testified that at the time that she filled out her inventory and condition form,

she did not know what constituted a security bar. Further, Keaton’s inventory and

condition form only notes, at most, that two of the exterior sliding glass doors at the

property had security bars, and it is undisputed that there were more than two exterior

sliding glass doors at the property. According to Keaton, Nowlin never installed

security bars on the exterior sliding glass doors at the property.

As charged, we cannot say that the jury’s finding that Nowlin, within a

reasonable time after receiving a written request, failed to “[i]nstall a sliding door

security bar for any exterior sliding glass door without a sliding door security bar”

is not supported by more than a scintilla of evidence. Accordingly, we hold that the

70 evidence is legally sufficient to support the jury’s finding that Nowlin failed to install

a security bar.

D. Handle Latches

Nowlin first argues that the evidence is legally insufficient to support the

jury’s finding that she failed to “[r]epair and replace the sliding door handle latch on

any exterior sliding glass door” because handle latches were only required to be

installed on sliding glass doors that did not already have security bars and all of the

sliding glass doors at the property were equipped with security bars. However,

contrary to Nowlin’s argument, we have already concluded that the evidence is

legally sufficient to support the jury’s finding that Nowlin failed to “[i]nstall a

sliding door security bar.” And we note that the trial court’s charge to the jury on

Question No. 8, to which Nowlin did not object, did not require the jury to find that

the exterior sliding glass doors at the property lacked security bars before it could

find that Nowlin, within a reasonable time and after receiving a written request,

failed to “[r]epair and replace the sliding door handle latch on any exterior sliding

glass door.”

Nowlin next argues that the evidence is legally insufficient to support the

jury’s finding that she, within a reasonable time after receiving a written request,

failed to “[r]epair and replace the sliding door handle latch on any exterior sliding

glass door” because there is no evidence that Keaton ever made a request for

71 compliance with Texas Property Code section 92.158 or a request for the repair of

handle latches on any exterior sliding glass door.

As previously addressed, because the trial court, in its charge to the jury, did

not define the term “request” and Nowlin did not object to the lack of a definition,

we measure the sufficiency of the evidence against the commonly-understood

meaning of the word “request.” See Graves, 448 S.W.3d at 109; Brown, 267 S.W.3d

The lease agreement stated that Nowlin was required by Texas law to provide

a handle latch or a security bar for each exterior sliding glass door at the property.

Keaton, on her inventory and condition form, which she completed at the beginning

of the lease term and which Nowlin signed, stated that the handle latches on the

upstairs exterior sliding glass doors did not function. And Nowlin conceded that

Keaton’s inventory and condition form listed items at the property that were

In regard to the exterior sliding glass doors, Nowlin acknowledged that

Keaton told her that the handle latches on the exterior sliding glass doors did not

work. And Nowlin affirmed that the inspector, who inspected the property prior to

Nowlin’s purchase, also notified her that the handle latches on the upstairs exterior

sliding glass doors needed to be adjusted and did not function property. The

inspector’s report states, in part: “The handle locks for all three sliding glass doors

72 along the [west] side of the house need to be adjusted” because the locks do not

latch.

Further, on June 11, 2014, Keaton sent Nowlin a letter “point[ing] out a lot of

the violations that [Nowlin] had committed according to the [Texas] Property Code.”

Specifically, in that letter, Keaton told Nowlin that she had not “install[ed] . . . a

sliding door handle latch . . . on each exterior sliding glass door of the [property].”

And Keaton stated, that the June 11, 2014 letter, in addition to the lease agreement,

inventory and condition form, was intended to notify Nowlin of her failure.

Moreover, in her July 28, 2014 email to Nowlin, Keaton stated: “[P]erhaps

you might plan services and repairs which are needed, such as installing a keyless

deadbolt on the front door, locks on the sliding glass doors, or the light fixture

outside the front door. Those are much more urgent than termite treatment for a

house that has been inspected specifically for termites in the last three months and

As charged, we cannot say that the jury’s finding that Keaton made a “request”

for the “[r]epair and replace[ment of] the sliding door handle latch on any exterior

sliding glass door” is not supported by more than a scintilla of evidence.

Accordingly, we hold that the evidence is legally sufficient to support the jury’s

finding that Nowlin failed to repair and replace the handle latch.

We overrule Nowlin’s fourth issue.

73 We note that Nowlin, in passing in her brief, asserts that Keaton “failed

adequately to allege a [counter]claim . . . for any violation of [Texas Property Code

section] 92.157.” To the extent that Nowlin attempts to advance this argument on

appeal, we conclude that it is waived. See TEX. R. APP. P. 38.1(i); Tesoro Petroleum

Corp., 106 S.W.3d at 128; see also Huey, 200 S.W.3d at 854.

Damages and Attorney’s Fees

In her fifth issue, Nowlin argues that the trial court erred in awarding Keaton

$500 for actual damages because Nowlin did not violate the Texas Property Code

and “[a]warding [Keaton] damages based on the cost of her renting a storage pod

during her move-out makes sense only if the jury determined that [Keaton] was

forced to move out by [Nowlin].” Due to our disposition above, we need not address

the first portion of Nowlin’s argument. See TEX. R. APP. P. 47.1. We hold the

remaining portion of Nowlin’s fifth issue is waived. See TEX. R. APP. P. 38.1(i);

Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Huey, 200 S.W.3d at 854.

In her sixth issue, Nowlin argues that the trial court erred in awarding Keaton

$19,100 in statutory damages because Keaton is not entitled to a judgment in her

favor on her counterclaims, including her counterclaims for violations of the Texas

Property Code. Nowlin asserts that Keaton’s statutory damages “should be reduced

to only such damages as are required as a result of the [counter]claims that survive

74 this appeal.” Due to our disposition above, we need not address Nowlin’s sixth issue.

See TEX. R. APP. P. 47.1.

In her seventh issue, Nowlin argues that the trial court erred in awarding

Keaton attorney’s fees because Nowlin is entitled to judgment in her favor on her

claim for breach of lease agreement and Keaton is actually liable to Nowlin for her

reasonable and necessary attorney’s fees. Due to our disposition above, we need not

address Nowlin’s seventh issue. See TEX. R. APP. P. 47.1.

Conclusion

We affirm the judgment of the trial court.

Julie Countiss Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.