Shamoun v. Shough

377 S.W.3d 63, 2012 Tex. App. LEXIS 4504, 2012 WL 2049527
CourtCourt of Appeals of Texas
DecidedJune 7, 2012
DocketNo. 05-10-00455-CV
StatusPublished
Cited by11 cases

This text of 377 S.W.3d 63 (Shamoun v. Shough) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shamoun v. Shough, 377 S.W.3d 63, 2012 Tex. App. LEXIS 4504, 2012 WL 2049527 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By Justice FITZGERALD.

In this landlord/tenant dispute, the trial court entered judgment for appellee Lisa R. Shough (Landlord) after a jury trial. In four issues, appellant Brigitte Shamoun (Tenant) contends the trial court erred in entering judgment for Landlord because [67]*67the jury’s answers were conflicting and were not supported by evidence. In a cross issue that Tenant contends was not properly preserved, Landlord challenges the amount of attorney’s fees awarded in the judgment. We overrule Tenant’s issues and Landlord’s cross issue but modify the judgment in accordance with the provisions of sections 92.108 and 92.109 of the Texas Property Code. See Tex. PROp.Code Ann. §§ 92.108, 92.109 (West 2007). We affirm the trial court’s judgment as modified. See Tex.R.App. P. 43.2(b) (court of appeals may modify trial court’s judgment and affirm as modified).

Background

Landlord leased her residence to Tenant for a one-year period to commence on August 26, 2004, and end on August 31, 2005. Tenant leased the home for herself and her son after separating from her husband. The parties signed a written lease requiring Tenant to pay monthly rent of $4,800. At the time the lease was signed, Tenant paid Landlord the amount of $35,529. This amount included a security deposit of $4,800, a pet deposit of $1,000, six months’ advance rent, and a prorated amount for the August 2004 rent. The lease permitted Landlord to deduct “reasonable charges” from the security deposit for damages to the property, excluding normal wear and tear, unpaid or accelerated rent, unpaid late charges, and a number of other charges specifically listed in the lease agreement. The lease also granted Tenant the option to purchase the property at any time during or at the end of the lease term. Tenant agreed “to tell the landlord her intent to move, purchase or renew this lease at least, 45 days, prior to her expiration date which will be no later than June 15, 2005.” The same provision of the lease also stated that the property “will be marketed only during the last 30 days of occupancy.” In June 2005, Landlord called Tenant to discuss sale of the home. Although the parties dispute the facts surrounding the events in June and July of 2005, they agree that Tenant was not interested in either renewing the lease or purchasing the home, and vacated the home before July 21, 2005. The Landlord’s sale of the home to another buyer closed in late July. Tenant reconciled with her husband and moved back into their home. Landlord did not return Tenant’s security deposit, and Tenant did not pay the July rent.

In a letter to Landlord dated August 3, 2005, Tenant demanded return of the security and pet deposits as well as reimbursement of expenses for repair of the air conditioning system and maintenance of the pool/spa. The letter was signed by Gregory Shamoun, an attorney and Tenant’s spouse. In a letter to Gregory Shamoun dated August 24, 2005, Landlord demanded payment for the July rent, late fees and charges, and amounts for “significant damages to the carpet and wood floors,” for a total of $7,900. In October, 2005, Tenant filed this suit, alleging causes of action for violation of the Texas Property Code, breach of contract, conversion, and money had and received. Landlord filed a counterclaim, also alleging causes of action for violation of the Texas Property Code and breach of contract. Landlord also alleged a claim for damage to the wooden floor of the home.

The case proceeded to a jury trial. Based on the jury’s findings, the trial court’s judgment awarded' $11,400 in damages to Landlord, plus attorney’s fees and interest. The judgment ordered that Tenant take nothing on her claims. This appeal followed.

Issues

In four issues, Tenant challenges the legal and factual sufficiency of the evi[68]*68dence to support the jury’s answers on the parties’ breach of contract and statutory claims. She also contends that the jury’s answers are in irreconcilable conflict.

Standards of Review

In reviewing a jury’s verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a “scintilla of evidence” is legally sufficient to support the jury’s finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). To be more than a scintilla, the evidence must rise “to a level that would enable reasonable and fair-minded people to differ in their conclusions.” See Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 25 (Tex.1994).

In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex.App.-Dallas 2008, pet. denied). In making this review this Court is not a fact finder, and we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.Dallas 2000, pet. denied).

When determining whether jury findings irreconcilably conflict, appellate courts apply a de novo standard of review. Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex.1980); Ford Motor Co. v. Miles, 141 S.W.3d 309, 314 (Tex.App.-Dallas 2004, pet. denied). In reviewing jury findings for conflict, the threshold question is whether those findings address the same material fact. Bender, 600 S.W.2d at 260; Miles, 141 S.W.3d at 314. We may not strike down jury answers on the basis of conflict if there is any reasonable basis on which they can be reconciled. Bender, 600 S.W.2d at 260; Miles, 141 S.W.3d at 314. We must reconcile apparent conflicts in the jury’s findings if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Bender, 600 S.W.2d at 260; Miles, 141 S.W.3d at 314-15. We do not determine whether the findings may be reasonably viewed as conflicting; to the contrary, the question is whether there is any reasonable basis upon which the findings can be reconciled. Bender, 600 S.W.2d at 260; Miles, 141 S.W.3d at 315. However, if one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. Miles, 141 S.W.3d at 315.

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377 S.W.3d 63, 2012 Tex. App. LEXIS 4504, 2012 WL 2049527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shamoun-v-shough-texapp-2012.