NUMBER 13-19-00554-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TANEISHA PAULIONO, Appellant,
v.
BROWNSVILLE TX EAST PRICE BIG 22 LLC D/B/A LA RESIDENCIA, Appellee.
On appeal from the County Court at Law No. 4 of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva Memorandum Opinion by Justice Silva Appellant Taneisha Pauliono brought suit against appellee Brownsville TX East
Price Big 22 LLC d/b/a La Residencia (La Residencia) for breach of contract for failing to
make repairs to her residence under a lease agreement. After an unfavorable ruling in
the justice court, Pauliono appealed for a de novo review in the county court at law. Following a hearing, the trial court entered a take-nothing judgment for La Residencia. In
three issues, which we treat as one, Pauliono challenges the factual sufficiency of the
evidence supporting the trial court’s judgment. 1 We affirm.
I. B ACKGROUND
Pauliono entered into a one-year lease with La Residencia on March 19, 2019. On
April 10, the electricity in Pauliono’s apartment began malfunctioning, causing her
refrigerator and half of her apartment to lose power. Pauliono notified La Residencia
through its emergency after-hours phone line. The following day, a maintenance worker
went to Pauliono’s apartment to inspect the issue, but the problem had subsided at the
time. Following the maintenance worker’s advice, Pauliono notified the front office of La
Residencia. By May 3, the problem persisted, leading Pauliono to provide written notice
to La Residencia and requesting either resolution to the problem, or to be moved to
another apartment unit. As the problem continued, Pauliono filed suit against La
Residencia on June 12, 2019, in the justice court of Cameron County, requesting $10,000
in damages. 2 On June 21, Pauliono provided La Residencia written notice of mold in the
air conditioning vent. At some point, Pauliono notified La Residencia that the air
conditioning unit was not cooling properly.
La Residencia replaced Pauliono’s air conditioning condenser, fan, and thermostat
on June 21. La Residencia originally scheduled a company to clean Pauliono’s vents on
1 Pauliono asserts three issues on appeal: (1) La Residencia breached the lease agreement by providing an uninhabitable environment; (2) La Residencia is responsible for damages for breaching the lease; and (3) the evidence was factually insufficient to support the trial court’s judgment.
2 In relevant part, Pauliono’s petition sates “The basis for the claim which entitles the plaintiff to
seek relief against the defendant is breach of contract/lease: landlord has failed to provide a habitable environment.”
2 June 24, but the cleaning was rescheduled to June 27 because the company’s truck broke
down. On June 27, the company arrived an hour late, which interfered with Pauliono’s
celebration of her daughter’s birthday, again prompting the parties to reschedule to July
3. On July 3, no individual over the age of eighteen was present, so the company could
not proceed. The company was apparently able to clean Pauliono’s vents on July 16. On
July 30, the electrical breaker to Pauliono’s apartment was replaced by an independent
contractor.
Because not all of the issues had been resolved, Pauliono withheld rent for the
month of July. On July 5, La Residencia provided Pauliono with a notice to vacate due to
unpaid rent. La Residencia proceeded to file an eviction suit on July 26. Pauliono
countersued, claiming retaliation by La Residencia for filing her initial lawsuit. 3 After
receiving an unfavorable ruling at the justice court level, Pauliono sought de novo review
with the county court at law.
A bench trial was held on September 23, 2019. Pauliono presented copies of the
written notices she provided La Residencia on May 3 (electrical problem) and June 21
(mold problem)—both were admitted. Related to the breach of contract claim, Pauliono
also presented copies of La Residencia’s June 28, notice of appointment to clean the
ducts, as well as its July 10 notice of rescheduled appointment, including the previously
scheduled dates for cleaning, which were admitted. 4 Neither party disputes the days and
times of the scheduled appointments, nor the reasons each was rescheduled. Pauliono
3 Although relevant to the factual background of this case, the eviction proceedings and subsequent
retaliation claim by Pauliono are not subject to this appeal. 4 Pauliono also presented exhibits related to her retaliation claim, including La Residencia’s notice to vacate to Pauliono and the citation and petition for La Residencia’s eviction suit against Pauliono.
3 did not present any evidence or testimony related to damages, but in closing stated: “[I]t
is clear that the defendant was guilty of breaching the lease that we had in place and not
providing a habitable and safe place for me and my children, I’m asking that the court
award damages in the amount of $10,000 for pain and suffering and mental distress.”
Pauliono obtained a judgment for $1,800 for her retaliation claim, but the court entered a
take-nothing judgment in favor of La Residencia for her breach of contract claim. This
appeal followed.
II. S TANDARD OF R EVIEW
In reviewing a challenge to the factual sufficiency of evidence, the appellate court
should examine the entire record, considering both the evidence in favor of and contrary
to the challenged findings. Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359
S.W.3d 318, 329 (Tex. App.—Corpus Christi–Edinburg 2012, pet. denied) (citing Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam)). When a party
attacks the factual sufficiency of an adverse finding on an issue on which it has the burden
of proof, the appellant bears the burden of demonstrating that “the adverse finding is
against the great weight and preponderance of the evidence.” Id. The judgment will only
be set aside if the evidence is so weak as to make the judgment “clearly wrong and
manifestly unjust.” Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The
factfinder is the sole judge of the witnesses’ credibility and may choose to believe one
witness over another. See id.
“When neither party requests findings of fact and conclusions of law following a
nonjury trial, all fact findings necessary to support the trial court's judgment are implied.”
Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). “An appellate court
4 cannot consider documents cited in a brief and attached as appendices if they are not
formally included in the record on appeal.” Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.
App.—Dallas 2006, no pet.); see also Arbor E & T, LLC v. Lower Rio Grande Valley
Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29 (Tex. App.—Corpus Christi–Edinburg 2013,
no pet.).
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NUMBER 13-19-00554-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TANEISHA PAULIONO, Appellant,
v.
BROWNSVILLE TX EAST PRICE BIG 22 LLC D/B/A LA RESIDENCIA, Appellee.
On appeal from the County Court at Law No. 4 of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva Memorandum Opinion by Justice Silva Appellant Taneisha Pauliono brought suit against appellee Brownsville TX East
Price Big 22 LLC d/b/a La Residencia (La Residencia) for breach of contract for failing to
make repairs to her residence under a lease agreement. After an unfavorable ruling in
the justice court, Pauliono appealed for a de novo review in the county court at law. Following a hearing, the trial court entered a take-nothing judgment for La Residencia. In
three issues, which we treat as one, Pauliono challenges the factual sufficiency of the
evidence supporting the trial court’s judgment. 1 We affirm.
I. B ACKGROUND
Pauliono entered into a one-year lease with La Residencia on March 19, 2019. On
April 10, the electricity in Pauliono’s apartment began malfunctioning, causing her
refrigerator and half of her apartment to lose power. Pauliono notified La Residencia
through its emergency after-hours phone line. The following day, a maintenance worker
went to Pauliono’s apartment to inspect the issue, but the problem had subsided at the
time. Following the maintenance worker’s advice, Pauliono notified the front office of La
Residencia. By May 3, the problem persisted, leading Pauliono to provide written notice
to La Residencia and requesting either resolution to the problem, or to be moved to
another apartment unit. As the problem continued, Pauliono filed suit against La
Residencia on June 12, 2019, in the justice court of Cameron County, requesting $10,000
in damages. 2 On June 21, Pauliono provided La Residencia written notice of mold in the
air conditioning vent. At some point, Pauliono notified La Residencia that the air
conditioning unit was not cooling properly.
La Residencia replaced Pauliono’s air conditioning condenser, fan, and thermostat
on June 21. La Residencia originally scheduled a company to clean Pauliono’s vents on
1 Pauliono asserts three issues on appeal: (1) La Residencia breached the lease agreement by providing an uninhabitable environment; (2) La Residencia is responsible for damages for breaching the lease; and (3) the evidence was factually insufficient to support the trial court’s judgment.
2 In relevant part, Pauliono’s petition sates “The basis for the claim which entitles the plaintiff to
seek relief against the defendant is breach of contract/lease: landlord has failed to provide a habitable environment.”
2 June 24, but the cleaning was rescheduled to June 27 because the company’s truck broke
down. On June 27, the company arrived an hour late, which interfered with Pauliono’s
celebration of her daughter’s birthday, again prompting the parties to reschedule to July
3. On July 3, no individual over the age of eighteen was present, so the company could
not proceed. The company was apparently able to clean Pauliono’s vents on July 16. On
July 30, the electrical breaker to Pauliono’s apartment was replaced by an independent
contractor.
Because not all of the issues had been resolved, Pauliono withheld rent for the
month of July. On July 5, La Residencia provided Pauliono with a notice to vacate due to
unpaid rent. La Residencia proceeded to file an eviction suit on July 26. Pauliono
countersued, claiming retaliation by La Residencia for filing her initial lawsuit. 3 After
receiving an unfavorable ruling at the justice court level, Pauliono sought de novo review
with the county court at law.
A bench trial was held on September 23, 2019. Pauliono presented copies of the
written notices she provided La Residencia on May 3 (electrical problem) and June 21
(mold problem)—both were admitted. Related to the breach of contract claim, Pauliono
also presented copies of La Residencia’s June 28, notice of appointment to clean the
ducts, as well as its July 10 notice of rescheduled appointment, including the previously
scheduled dates for cleaning, which were admitted. 4 Neither party disputes the days and
times of the scheduled appointments, nor the reasons each was rescheduled. Pauliono
3 Although relevant to the factual background of this case, the eviction proceedings and subsequent
retaliation claim by Pauliono are not subject to this appeal. 4 Pauliono also presented exhibits related to her retaliation claim, including La Residencia’s notice to vacate to Pauliono and the citation and petition for La Residencia’s eviction suit against Pauliono.
3 did not present any evidence or testimony related to damages, but in closing stated: “[I]t
is clear that the defendant was guilty of breaching the lease that we had in place and not
providing a habitable and safe place for me and my children, I’m asking that the court
award damages in the amount of $10,000 for pain and suffering and mental distress.”
Pauliono obtained a judgment for $1,800 for her retaliation claim, but the court entered a
take-nothing judgment in favor of La Residencia for her breach of contract claim. This
appeal followed.
II. S TANDARD OF R EVIEW
In reviewing a challenge to the factual sufficiency of evidence, the appellate court
should examine the entire record, considering both the evidence in favor of and contrary
to the challenged findings. Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359
S.W.3d 318, 329 (Tex. App.—Corpus Christi–Edinburg 2012, pet. denied) (citing Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam)). When a party
attacks the factual sufficiency of an adverse finding on an issue on which it has the burden
of proof, the appellant bears the burden of demonstrating that “the adverse finding is
against the great weight and preponderance of the evidence.” Id. The judgment will only
be set aside if the evidence is so weak as to make the judgment “clearly wrong and
manifestly unjust.” Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The
factfinder is the sole judge of the witnesses’ credibility and may choose to believe one
witness over another. See id.
“When neither party requests findings of fact and conclusions of law following a
nonjury trial, all fact findings necessary to support the trial court's judgment are implied.”
Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). “An appellate court
4 cannot consider documents cited in a brief and attached as appendices if they are not
formally included in the record on appeal.” Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.
App.—Dallas 2006, no pet.); see also Arbor E & T, LLC v. Lower Rio Grande Valley
Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29 (Tex. App.—Corpus Christi–Edinburg 2013,
no pet.). Generally, a party may not assert a new cause of action or argument on appeal.
TEX. R. APP. P. 33.1(a); see also Gignac & Assoc., LLP v. Hernandez, No. 13-17-00336-
CV, 2018 WL 898144, *2 (Tex. App.—Corpus Christi–Edinburg Feb. 15, 2018, no pet.)
(mem. op.).
III. A PPLICABLE L AW
“The elements in a suit for breach of contract claim are: (1) a valid contract; (2) the
plaintiff performed or tendered performance; (3) the defendant breached the contract; and
(4) the plaintiff was damaged as a result of the breach.” Doss v. Homecoming Fin.
Network, Inc., 210 S.W.3d 706, 713 (Tex. App.—Corpus Christi–Edinburg, 2006 pet.
denied). Failure of a plaintiff to prove any one of the elements will result in a judgment for
the defendant. See id. Damages in a breach of contract claim are measured by the actual
damages caused by the breach. Hartfield v. Solomon, 316 S.W.3d 50, 65 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). “[T]ort damages are generally not recoverable unless
the plaintiff suffered an injury that is independent and separate from the economic losses
recoverable under a breach of contract claim.” Etsy v. Beal Bank S.S.B., 298 S.W.3d 280,
301 (Tex. App.—Dallas, 2009, no pet.).
IV. D ISCUSSION
At trial, Pauliono failed to present any evidence demonstrating she suffered actual
damages for the breach of contract and requested only damages for “pain and suffering
5 and mental distress.” 5 Tort damages, including pain and suffering, are not available in a
breach of contract claim, absent independent injury. See Etsy, 298 S.W.3d at 301.
Because Pauliono did not present evidence of damages, actual or otherwise, or of an
independent injury caused by La Residencia’s breach, she cannot recover for any
purported breach of contract. See Doss, 210 S.W.3d at 713. Because the lack of evidence
of damages is dispositive, we need not address the remaining elements of a breach of
contract claim.
In support of her claim for damages, Pauliono asserts on appeal, for the first time,
that La Residencia violated Texas Property Code § 92.056 because the problems in her
apartment presented a safety hazard. See TEX. PROP. CODE ANN. § 92.056. If a landlord
is liable to a tenant under § 92.056, then the tenant’s remedies include, but are not limited
to, a judgment against the landlord for a civil penalty of one month’s rent plus $500, actual
damages, court costs, and attorney’s fees. Id.§ 92.0563. However, Pauliono did not plead
for relief under § 92.056 at trial and only argued that La Residencia breached the lease
agreement. Accordingly, La Residencia’s purported violations under § 92.056 were not
preserved for appellate review. See TEX. R. APP. P. 33.1(a); see also Gignac & Assoc.,
LLP, 2018 WL 898144, *2.
Having reviewed the entire record, we cannot say that the evidence is so weak as
to make the judgment “clearly wrong and manifestly unjust.” See Playboy Enters., Inc.,
359 S.W.3d at 329. Pauliono has failed to prove “the adverse finding is against the great
weight and preponderance of the evidence.” See Id. Pauliono’s sole issue is overruled.
5Pauliono attached a copy of a new lease agreement that she entered with a different lessor as Appendix 5. Because the lease was not presented at trial, we cannot consider the lease in our decision. See Cantu, 195 S.W.3d at 870.
6 V. C ONCLUSION
The trial court’s judgment is affirmed.
CLARISSA SILVA Justice
Delivered and filed on the 25th day of February, 2021.