Opinion
03-22-00613-CV
02-28-2023
Deborah Blessing, Appellant v. Vivian Balderas, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF BELL COUNTY NO. 22CCV00925, THE HONORABLE JEANNE PARKER, JUDGE PRESIDING
BEFORE JUSTICES BAKER, KELLY, AND SMITH
MEMORANDUM OPINION
THOMAS J. BAKER, JUSTICE
This is an appeal from the county court's judgment rendered in an eviction case. Deborah Blessing argues that the county court's judgment granting possession of the residential property at issue to her landlord, Vivian Balderas, is not supported by legally sufficient evidence. For the following reasons, we reverse in part the county court's judgment, render judgment for Blessing on the issue of possession and a take-nothing judgment with respect to attorney's fees and court costs, and affirm the remainder of the judgment.
BACKGROUND
Blessing and Balderas signed a twenty-four-month lease on the residential property at issue. The lease specified monthly rent of $1,400.00 and authorized an award of attorney's fees and court costs to a prevailing party in "any legal proceeding" related to the lease. See Tex. Prop. Code § 24.006 (authorizing attorney's fees and court costs to prevailing party in eviction action). After Blessing allegedly failed to pay rent in July 2022 and committed other lease violations, Balderas posted a notice to vacate on the premises. See id. § 24.005 ("Notice to Vacate Prior to Filing Eviction Suit"). The notice stated that if Blessing did not pay the amount of $1,660.00 or vacate the property within three days, Balderas would commence eviction proceedings.
The amount demanded included unpaid rent for July of $1,400; $175 in late fees charged for April rent that was paid late; and $85 in late fees for July to date.
When Blessing failed to pay the amount demanded, Balderas filed an eviction action, including a claim for unpaid rent, in justice court. See Tex. R. Civ. P. 510.3; see generally id. R. 510.1-510.13 ("Eviction Cases"). After a jury trial, that court rendered judgment on the jury's verdict, awarding Balderas possession of the property but no damages and setting an appeal bond at $1,400.00 should Blessing appeal to the county court. See id. R. 510.9(b). Blessing perfected de novo appeal to the county court by filing with the justice court a "Statement of Inability to Afford Payment of Court Costs or an Appeal Bond," which Balderas did not contest. See id. R. 510.9(c), 510.10. In her pleadings before the county court, Blessing raised the affirmative defense of Balderas's alleged failure to comply with the prescribed statutory notice to vacate and requested the court to "allow rent credit or reimbursement" for repairs to the HVAC system that Blessing allegedly paid in accordance with the parties' lease.
The justice court provided Blessing notice that to avoid the issuance of a writ of possession while the de novo appeal to county court was pending, she was required to pay into the court's registry the monthly rent as it became due. See Tex. Prop. Code § 24.0053 ("Payment of Rent During Appeal of Eviction"); Tex.R.Civ.P. 510.9 ("Appeal"). The record reflects that, by the September 19, 2022 trial to the county court, Blessing had paid $2,800.00 into the court's registry. At trial, the county court heard the testimony of Balderas, Blessing, and Balderas's attorney and admitted several exhibits: the lease, the receipt for the security deposit, the notice to vacate, photos of the notice to vacate taped to the home's exterior doors, photos of the interior of the home, and text messages between the parties. Thereafter, the county court rendered judgment awarding Balderas possession of the property; "back rent in the amount of $2,800.00, which includes the $2,800.00 held in the registry of the court"; $1,500.00 in attorney's fees, and court costs of $154.00, plus post-judgment interest. The judgment also ordered the county clerk to issue to Balderas a $2,800.00 check from the court's registry. Blessing timely perfected appeal to this Court.
DISCUSSION
In her first issue, Blessing contends that the evidence was legally insufficient to support the element of Balderas's eviction claim that she provided proper statutory notice to vacate. See Tex. Prop. Code § 24.005; Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017) (listing elements of eviction claim). When an appellant brings a challenge to the legal sufficiency of the evidence supporting an adverse finding on an issue on which she did not have the burden of proof, the appellant must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We agree with Blessing that there is legally insufficient evidence on the element of notice to vacate.
Property Code Section 24.005(f) governs the required notice to vacate that a landlord must provide a tenant, and Subsection (f-1) allows for alternative means of notice under certain circumstances. See Tex. Prop. Code § 24.005(f), (f-1); Soto v. Pantalion, No. 01-20-00321-CV, 2021 WL 2931363, at *6-7 (Tex. App-Houston [1st Dist] July 13, 2021, no pet.) (mem. op.). The parties' lease authorized Balderas to provide notice to vacate "by any means permitted by §24.005, Property Code." The permitted means under Subsection (f) are delivery of the notice to vacate (1) in person or (2) by mail to the premises. Tex. Prop. Code § 24.005(f). Balderas admitted in her testimony that she did not provide the notice by mail. A landlord has three options for in-person delivery of the notice: (1) personal delivery to the tenant, (2) personal delivery to any person residing at the premises who is sixteen years of age or older, or (3) by affixing the notice to the inside of the main entry door. Id. Balderas testified that she taped the notice (entitled "Texas 3-Day Notice to Vacate (Nonpayment of Rent))" to the exterior of both the main entry door and the garage door. Because Balderas, admittedly, failed to mail the notice or provide it to Blessing via one of the authorized in-person means, she did not comply with Subsection (f).
When applicable, alternative service under Subsection (f-1) is effectuated by
securely affixing to the outside of the main entry door a sealed envelope that contains the notice and on which is written the tenant's name, address, and in all capital letters, the words "IMPORTANT DOCUMENT" or substantially similar language and, not later than 5 p.m. of the same day, depositing in the mail in the same county in which the premises in question is located a copy of the notice.Id. § 24.005(f-1) (emphases added). Balderas admitted, and the photographic evidence confirms, that she did not place the notice in an envelope but merely taped it onto the exterior doors; she also admitted that she did not additionally mail the notice to Blessing. Thus, Balderas did not comply with Subsection (f-1).
Because eviction is a statutory cause of action, a landlord must strictly comply with Section 24.005's requirements. Soto, 2021 WL 2931363, at *7; Briones v. Brazos Bend Villa Apts., 438 S.W.3d 808, 811 (Tex. App.-Houston [14th Dist.] 2014, no pet.). The record lacks any evidence that Balderas complied with any of the statutory notice requirements, including the alternative means the parties' lease authorized. While Balderas responds that she "substantially complied" with the notice requirement, the statute uses mandatory language ("The demand for possession must be made in writing . . . and must comply with the requirements for notice to vacate under Section 24.005," see Tex. Prop. Code § 24.002(b)), and the caselaw requires strict compliance with the statute, see, e.g., Soto, 2021 WL 2931363, at *7. Furthermore, the failure of a landlord to comply with the statutory-notice requirement is not subject to a harm analysis, see Geters v. Baytown Hous. Auth., 430 S.W.3d 578, 585 (Tex. App -Houston [14th Dist] 2014, no pet.), and thus whether Blessing in fact received timely notice does not affect whether Balderas proved her case. Accordingly, we sustain Blessing's first issue. See Soto, 2021 WL 2931363, at *7; Onabajo v. Household Fin. Corp. III, No. 03-15-00251-CV, 2016 WL 3917140, at *5 (Tex. App-Austin July 14, 2016, no pet.) (mem. op.); Geters, 430 S.W.3d at 585. Because the evidence is legally insufficient to support an element of Balderas's eviction claim, we reverse the trial court's judgment on the issue of possession and render judgment on that issue for Blessing. See Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 270 (Tex. 2002).
Due to our disposition of Blessing's first issue, we need not address her second issue, in which she contends that there is insufficient evidence to support the trial court's award to Balderas of attorney's fees. See Tex. R. App. P. 47.1; Coastal Res., Ltd. v. Los Lazos Const. & Lease Serv., LLC, No. 04-11-00763-CV, 2013 WL 1760602, at *8 n.4 (Tex. App.- San Antonio Apr. 24, 2013, no pet.) (mem. op.) (explaining that reversal of judgment on party's claim entitling it to attorney's fees "necessarily also reverses the award of attorney's fees").
While the judgment refers to its award of $2,800.00 to Balderas as "back rent," the remainder of the judgment, the record, and the applicable law demonstrate that the amount actually constitutes the proper allocation to Balderas of the accrued rental payments that Blessing paid into the court's registry, as required, during pendency of the de novo appeal. See Tex. Prop. Code § 24.0053; Tex.R.Civ.P. 510.9; Gloston v. Ellison, 651 S.W.3d 637, 642 (Tex. App- Houston [14th Dist.] 2022, no pet) (explaining that defendant's rent payments into court's registry are "clearly available for disbursement" to plaintiff per procedures listed in Section 24.0053, including by court order after final hearing). Although Balderas testified about alleged back rent owing for the month of July 2022, construing the judgment as a whole establishes that the county court did not render judgment for her on that claim but merely authorized the court clerk to disburse the rental payments that had accrued, and were paid by Blessing, while the case was pending. See Anderson v. Archer, No. 03-19-00003-CV, 2019 WL 6205524, at *3 (Tex. App - Austin Nov. 21, 2019, pet. denied) (mem. op.) (noting that construction of judgments is question of law, and courts apply same rules of construction applicable to written instruments generally). Thus, Balderas was not a prevailing party on either of her claims-for possession or for back rent-and she is therefore not entitled to attorney's fees or costs under the statute or lease.
CONCLUSION
We reverse the portion of the trial court's judgment awarding possession of the premises to Balderas and render judgment on that issue for Blessing. We reverse the portion of the judgment awarding Balderas attorney's fees, court costs, and post-judgment interest and render a take-nothing judgment on those issues. We affirm the remainder of the judgment. We additionally dissolve our temporary stay of the issuance of a writ of possession and of the execution of any such writ.
We dismiss as moot Blessing's pending motion and amended motion for review of supersedeas bond.
Affirmed in Part; Reversed and Rendered in Part