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holding after county court's de novo review of justice court's judgment, "[a]ny non-jurisdictional errors or irregularities in the Justice Court became a nullity, and any challenge based on such errors or irregularities is moot"
Summary of this case from Whitehurst v. Hudson SFR Prop. Holdings IIOpinion
01-21-00627-CV
12-29-2022
MICHAEL W. GIOFFREDI, Appellant v. THE RETREAT AT RIVERSTONE, Appellee
On Appeal from County Court at Law No. 1 Fort Bend County, Texas Trial Court Case No. 21-CCV-068826
Panel consists of Chief Justice Radack and Justices Countiss and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
This appeal involves a Petition for Relief filed under Section 92.0563 of the Texas Property Code stemming from a request to remedy and repair an alleged condition involving "pipes clanking" in Appellant's apartment unit. Appellant Michael W. Gioffredi ("Gioffredi") originally filed his petition against The Retreat at Riverstone ("Riverstone") with the Justice of the Peace Court. Following trial, the Justice Court entered a take nothing judgment against Gioffredi. Gioffredi appealed the take nothing judgment to the County Court at Law, which granted summary judgment in favor of Riverstone.
Gioffredi now appeals from the County Court's order granting summary judgment in favor of Riverstone. In his first three issues, Gioffredi complains about the Justice Court, arguing (1) the evidence he submitted to the Justice Court is missing from the Justice Court's record, (2) the Justice Court erred in setting the appearance date on his petition more than fifty days after he filed his petition, and (3) the Justice Court's judgment is not "a correct application of the Law as applied to the facts." In issues four through eight, Gioffredi complains about the County Court, arguing (4) the evidence he submitted to the county clerk's office is not included in the county clerk's record, (5) the County Court erred by scheduling a pretrial hearing because it delayed the trial in violation of Texas Rule of Civil Procedure 503.4(b), (6) the County Court erred in granting Riverstone's motion for continuance because Riverstone had not yet filed a defense in the County Court, (7) the County Court erred in granting Riverstone's motion for summary judgment because a genuine issue of material fact exists as to whether Riverstone received Gioffredi's October 24, 2020 notice to repair or remedy the condition, and (8) the transcript of the summary judgment hearing is inaccurate.
We affirm the trial court's judgment.
Background
Gioffredi leased an apartment at Riverstone on March 15, 2020. On December 8, 2020, Gioffredi filed a Petition for Relief under Section 92.0563 of the Texas Property Code in the Justice of the Peace Court, Precinct 4, of Fort Bend, County, Texas, against Riverstone. He claimed that a condition involving loud pipes existed at his apartment, which Riverstone had not addressed or remedied. In his petition, Gioffredi alleged that on April 1, 2020, he gave Riverstone written notice requesting that Riverstone repair or remedy the condition, and that he sent the notice by certified mail, return receipt requested or registered mail on October 24, 2020. Gioffredi described the condition as: "There continues to be many loud noises in my apartment due to a broken water pipe and faulty electrical equipment. The noise occurs day and night and is a health and safety hazard that prevents me from being able to sleep." Gioffredi asked the Justice Court to issue a "court order to repair or remedy the condition," impose a civil penalty against Riverstone in the amount of one months' rent plus $500, and award Gioffredi his attorney's fees and court costs.
Gioffredi's monthly rent was $1,280.
Gioffredi attached copies to his petition of written notices to Riverstone and its management company, Allied Orion Group ("Allied"), which he contends he sent to them on October 24, 2020, informing them of the noises in his apartment and seeking to terminate his lease. He also attached a copy of his lease, work orders, and email correspondence he exchanged with Riverstone and Allied. After a trial, the Justice Court entered a take nothing judgment against Gioffredi.
Gioffredi appealed the take nothing judgment to the County Court at Law. He filed an "Appeal Brief" in the County Court arguing that he first notified Riverstone about the banging noises in his apartment on April 1, 2020. He discussed his regular communications with Riverstone and Riverstone's efforts to repair the problem, such as sending property maintenance workers to inspect the problem on multiple occasions. According to Gioffredi, Allied sent a regional maintenance worker to his apartment on May 15, 2020, and the worker "found that the outlet pipe from the dish washer was cracked and leaking sewage water into the wall among other problems[, and a]fter this cracked pipe was repaired the noise ended temporarily." Gioffredi acknowledged that Riverstone, who allegedly refused to allow him to terminate the lease, attempted to remedy the problem by transferring him to another unit at the same rental price. Gioffredi claimed he did not accept Riverstone's offer because he thought the available unit was less valuable than his apartment and Riverstone would not pay for someone to move him into the new apartment. He stated that while Riverstone refused to refund the two months of rent he requested, he accepted a $500 refund from them. Gioffredi argued that he started to hear notices in his attic again and the "noise became loud enough to be a sleeping hazard again in October" 2020. According to Gioffredi, he sent a final notice to repair the condition to Riverstone via certified mail with return receipt on October 24, 2020, and while Riverstone sent maintenance workers and made efforts to repair or remedy the condition, they did not hire a plumber as he had requested until the day after the trial in the Justice Court. Gioffredi asserted that the condition was "repaired in less than 10 minutes" because "[a]ll the plumbers had to do was stabilize the pipe to prevent it from moving and banging against the wall by adding braces." Gioffredi also attached an index of the 124 files he submitted to the Justice Court, some of which, he asserted, had not been filed with the County Court.
Riverstone filed a response brief along with a motion for summary judgment. In its motion for summary judgment, Riverstone argued that it was entitled to judgment as a matter of law because Riverstone had complied with its obligations under Section 92.056 of the Texas Property Code "by responding to the request of [Gioffredi] within a reasonable amount of time (within 14 days) and remaining in constant communication with [Gioffredi]." According to Riverstone, the correspondence with Gioffredi and completed work orders attached to its motion demonstrated Riverstone's "diligent effort to repair and remedy the condition."
Riverstone attached thirty-one exhibits to its motion for summary judgment, most of which are emails exchanged by Riverstone and Gioffredi regarding the noises in Gioffredi's apartment, and two work orders. Riverstone also attached affidavits from its property manager and assistant property manager, both of whom denied signing for the letter Gioffredi claims to have sent to Riverstone on October 24, 2020, and stated they were never "made aware by any other person in the office that a letter was received from Mr. Gioffredi on October 24, 2020, as alleged in Mr. Gioffredi's Original Petition."
In its summary judgment motion, Riverstone asserted that Gioffredi first reported hearing a loud banging sound on April 1, 2020, and it attached to its motion an email from Kelli Ashcraft ("Ashcraft"), Riverstone's community manager, sent to Gioffredi on April 2, 2020. In her email, Ashcraft apologized to Gioffredi and informed him that Riverstone had "construction contractors all over the community all this week making repairs," but they should be done by the next week. On April 3, 2020, Gioffredi replied to Ashcraft and informed her that the noise "sounds like someone is pounding a hammer above [his] room" and "[t]here are no workers around when this is happening." Gioffredi speculated that the noise was caused by "a broken pipe or other machinery." Ashcraft responded by asking Gioffredi about the frequency and whether it occurred during the day or night. Over the next several weeks, Gioffredi and Ashcraft exchanged additional emails regarding the noises and Riverstone's efforts in an attempt to address the problem. On April 17, 2020, a Riverstone maintenance worker went to Gioffredi's apartment to inspect the problem. The maintenance worker determined that there were "no water pipes running in the attic," but a "drainpipe that connects all 3 floors was loose," and he resealed the pipe and the "pipes under the kitchen." This did not resolve the problem and Gioffredi continued to complain about the noises. Ashcraft reiterated that Gioffredi needed to call Riverstone's main office number or the emergency number when he heard the noises because not "being present while it is occurring, makes it difficult to track down the location." Gioffredi insisted that the "noise is from the water pipes in the attic above my kitchen" and he insisted that Riverstone call a plumber to repair the problem. On May 6, 2020, Riverstone offered to transfer Gioffredi's lease to another apartment, but Gioffredi ultimately opted against the transfer and began insisting on terminating his lease and demanding a full refund of his rent. Riverstone continued to send maintenance workers out to work on the problem and they were able to resolve it in May 2020. On May 29, 2020, Ashcraft informed Gioffredi that she could not refund his rent, and offered him a $500 gift card, which he accepted.
The noises began again in August 2020. On August 23, 2020, Gioffredi emailed Ashcraft stating, "There is still noise in the attic above my apartment. This is different from the broken pipe. It sounds like the wood in the attic is warping. Is there another apartment without an attic I can transfer to?" Ashcraft informed Gioffredi the next day that warping wood does not make a noise and she would come by his apartment with maintenance later in the week after the hurricane passed through the area.
On November 4, 2020, Riverstone's assistant manager sent an email to Gioffredi about the work order Gioffredi had submitted complaining about noises in his apartment. According to the email, Riverstone's maintenance team had visited Gioffredi's apartment, but they were not able to hear anything while there. Riverstone asked Gioffredi to call the office number or emergency number when he heard the noise. Gioffredi and Ashcraft exchanged several emails on November 5, 2020, discussing the noises and Riverstone's efforts to address the problem and, late that afternoon, Ashcraft told Gioffredi that she would try to send someone from the maintenance team to his apartment the next day.
Riverstone's summary judgment evidence does not include any correspondence between August 24, 2020, and November 3, 2020.
Riverstone also attached a work order showing that Gioffredi reported hearing "loud snapping/banging noise" in the attic above his apartment. According to the work order, which was completed on November 5, 2020, a "[p]ipe was found to be broken in the wall causing the knocking noise between floors" and the pipe was repaired.
On November 10, 2020, Ashcraft emailed Gioffredi, "I never heard back from you and did not want to send maintenance without you agreeing. Let me know if this is okay." Gioffredi responded that she could send someone from maintenance and asked her to let him know when to expect them because he would start running the dish washer in advance. On November 11, 2020, Ashcraft emailed Gioffredi that Riverstone's regional maintenance would be at the apartment complex the next week and she would have them inspect his apartment. According to a November 18, 2020 email, the maintenance worker showed up unexpectedly on November 16, 2020 and he went to Gioffredi's apartment, but he was not home. On December 12, 2020, Gioffredi emailed Ashcraft and complained that "[t]he broken water pipe is still making noise at night." On December 14, 2020, Ashcraft told Gioffredi that someone from their maintenance team would be out the next day to look at the water pipe. According to Gioffredi, the problem was fixed on January 29, 2021. Gioffredi moved out of the apartment when his lease ended on March 15, 2021.
Riverstone also argued that Gioffredi was not entitled to recover on his claims because he "failed to provide notice as required under Section 92.056(b)(3)." Contrary to Gioffredi's assertion in his petition, Riverstone argued it never received a letter from Gioffredi on October 24, 2020, notifying it officially of the condition in Gioffredi's apartment. Gioffredi did not file a response to Riverstone's motion for summary judgment.
The County Court held a hearing on Riverstone's motion for summary judgment. During the hearing, the County Court noted that Gioffredi had not filed a response to the motion and informed Gioffredi that his appellate brief, filed a month before Riverstone filed its motion for summary judgment, was not applicable to the summary judgment proceeding. The County Court, however, allowed Gioffredi to "put on [his] case" and asked Gioffredi if he had "any evidence that [he] would like to present in opposition to the Motion for Summary Judgment." The County Court allowed Gioffredi to play one of his videos showing the condition in his apartment.
On appeal, Gioffredi asserts that he filed a USB drive with the clerk's office with 124 files, but he does not point to any of the other files on the device as evidence, aside from the videos, the notice he sent to Riverstone via certified mail return receipt requested, and the receipt showing someone signed for the notice to Riverstone.
After allowing Gioffredi to discuss the pipe noises and problems at his apartment beginning in April 2020, and his efforts to get Riverstone to remedy the problems, the County Court interjected and asked Gioffredi what remedy he was seeking. The County Court pointed out that Gioffredi's request to have the court order Riverstone to repair or remedy the condition was moot because the condition had been repaired, Gioffredi had already vacated the apartment, and Gioffredi could not recover attorney's fees because he was proceeding pro se. The County Court noted that at most, Gioffredi would be able to recover a civil penalty in the amount of $1,700-one month's rent, plus an additional $500, and his costs, which the County Court estimated could not be more than $500. The County Court then took a ten-minute recess to allow the parties to attempt to settle their dispute. When the parties reported their settlement talks were unsuccessful, the County Court reconvened the hearing. After hearing additional arguments from Gioffredi, Riverstone made a brief argument in support of its motion for summary judgment, and the County Court allowed Gioffredi to respond. At that point, the County Court told Gioffredi:
I understand your frustration that it took a very long time to fix an issue. I understand that, but I have to look to did they actually do something or at least respond to you and make some attempts to look at it. Okay? Because 90.0563 really applies to, you contact the landlord. They just refuse to do anything. Nope. I am looking at it. Don't care. A.C. is out in the middle of summer. Oh, well, good luck.
...
I'm granting the Motion for Summary Judgment, Mr. Gioffredi. Dismissing this case at this time. I understood your frustration. I do. Okay? I've been in this situation where you know there is something wrong. They're refusing to -- or they're not getting to the bottom of it, I should say. I understand your frustration. Okay? But under the Texas Property Code and under the M.S.J. and the fact that you failed to respond to it, the law is clear. I have to dismiss this matter under the Motion for Summary Judgment.
The County Court signed an order the same day as the hearing granting Riverstone's motion for summary judgment and dismissing Gioffredi's claims. This appeal followed.
Texas Property Code Section 92.056(b)Chapter 92 of the Texas Property Code addresses the rights, duties, and liabilities of residential landlords and tenants, including the landlord's obligation to repair or remedy conditions on the leased property. Section 92.052(a) of the Texas Property Code, which sets forth the landlord's statutory duty to repair or remedy conditions on the leased property, states:
(a) A landlord shall make a diligent effort to repair or remedy a condition if:
(1) the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid;
(2) the tenant is not delinquent in the payment of rent at the time notice is given; and
(3) the condition:
(A) materially affects the physical health or safety of an ordinary tenant; or
(B) arises from the landlord's failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.
TEX. PROP. CODE § 92.052(A). SECTION 92.056(B) OF THE TEXAS PROPERTY CODE, WHICH ADDRESSES THE LANDLORD'S LIABILITY IF IT FAILS TO REPAIR OR REMEDY A CONDITION AS REQUIRED by Section 92.052(a) states:
A landlord is liable to a tenant as provided by this subchapter if:
(1) the tenant has given the landlord notice to repair or remedy a condition by giving that notice to the person to whom or to the place where the tenant's rent is normally paid;
(2) the condition materially affects the physical health or safety of an ordinary tenant;
(3) the tenant has given the landlord a subsequent written notice to repair or remedy the condition after a reasonable time to repair or remedy the condition following the notice given under
Subdivision (1) or the tenant has given the notice under Subdivision (1) by sending that notice by certified mail, return receipt requested, by registered mail, or by another form of mail that allows tracking of delivery from the United States Postal Service or a private delivery service;
(4) the landlord has had a reasonable time to repair or remedy the condition after the landlord received the tenant's notice under Subdivision (1) and, if applicable, the tenant's subsequent notice under Subdivision (3);
(5) the landlord has not made a diligent effort to repair or remedy the condition after the landlord received the tenant's notice under Subdivision (1) and, if applicable, the tenant's notice under Subdivision (3); and
(6) the tenant was not delinquent in the payment of rent at the time any notice required by this subsection was given.
To prove an action for failure to repair or remedy under Section 92.056(b), a tenant must establish that the landlord had a reasonable time to repair or remedy the condition after receiving notice but did not make a diligent effort to do so. Id. § 92.056(b)(4), (b)(5); see also Hamaker v. Newman, No. 02-19-00405-CV, 2022 WL 714554, at *13 (Tex. App.-Fort Worth Mar. 10, 2022, no pet.) (mem. op.). While Section 92.056 does not require that the landlord successfully repair or remedy a materially harmful condition, it does require a "diligent effort." Hamaker, 2022 WL 714554, at *13. Section 92.056(d) provides that in "determining whether a period of time is a reasonable time to repair or remedy a condition, there is a rebuttable presumption that seven days" after the date the landlord receives the tenant's notice under Subdivision (1) and, if applicable, the tenant's subsequent notice under Subdivision (3), is a reasonable time. See TEX. PROP. CODE § 92.056(d). To rebut that presumption, “the date on which the landlord received the tenant's notice, the severity and nature of the condition, and the reasonable availability of materials and labor and of utilities from a utility company must be considered.” Id.
Section 92.053 of the Texas Property Code, which sets forth the burden of proof with respect to a Section 92.056(b) claim, states:
(a) Except as provided by this section, the tenant has the burden of proof in a judicial action to enforce a right resulting from the landlord's failure to repair or remedy a condition under Section 92.052.
(b) If the landlord does not provide a written explanation for delay in performing a duty to repair or remedy on or before the fifth day after receiving from the tenant a written demand for an explanation, the landlord has the burden of proving that he made a diligent effort to repair and that a reasonable time for repair did not elapse.
Justice Court
In his first three issues, Gioffredi complains about the proceedings before the Justice Court. He argues (1) the evidence he submitted to the Justice Court is missing from the Justice Court's record, (2) the Justice Court erred in setting the appearance date on his petition more than fifty days after he filed his petition, and (3) the Justice Court's judgment is not "a correct application of the Law as applied to the facts."
After the Justice Court entered a take nothing judgment against him, Gioffredi appealed the judgment to the County Court at Law for a trial de novo. See TEX. R. CIV. P. 506.3 ("The Case Must be Tried de novo in the county court."). "A Trial de novo is a new trial in which the entire case is presented as if there had been no previous trial." Id. When Gioffredi perfected his appeal to the County Court, the Justice Court's judgment was thus vacated and annulled, and the County Court heard the case de novo "as if there had been no previous trial." See Praise Deliverance Church v. Jelinis, LLC, 536 S.W.3d 849, 854 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) (stating perfection of appeal to county court at law from justice court for trial de novo vacates and annuls justice court's judgment); Villalon v. Bank One, 176 S.W.3d 66, 69-70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (same holding). Any non-jurisdictional errors or irregularities in the Justice Court became a nullity, and any challenge based on such errors or irregularities is moot. See Stevenson v. Housing Auth. of the City of Austin, 385 S.W.3d 684, 687 (Tex. App.- El Paso 2012, no pet.) (holding appellant's complaint that justice court violated his due process rights was moot in light of trial de novo on appeal in county court at law).
We thus hold that Gioffredi's first three issues, in which he complains about the proceedings before the Justice Court, are moot. This Court does not have jurisdiction to decide moot issues. See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). We overrule Gioffredi's first, second, and third issues.
County Court
In his remaining five issues, Gioffredi challenges the County Court's judgment. In issues four through eight, Gioffredi argues that (1) the evidence he submitted to the county clerk's office is not included in the county clerk's record; (2) the County Court erred by scheduling a pretrial hearing because it delayed the trial in violation of Texas Rule of Civil Procedure 503.4(b); (3) the County Court erred in granting Riverstone's motion for continuance because Riverstone had not yet filed a defense in the County Court; (4) the County Court erred in granting Riverstone's motion for summary judgment because a genuine issue of material fact exists as to whether Riverstone received the October 24, 2020 notice to repair or remedy the condition; and (5) the transcript of the summary judgment hearing is inaccurate.
A. Evidence Missing from the County Clerk's Record
In his fourth issue, Gioffredi complains that the videos he submitted to the county clerk's office are not included in the county clerk's record, and as a result, they are not included in the appellate record.
Gioffredi filed his appellate brief pro se. Although we liberally construe pro se briefs, we still require pro se litigants to comply with applicable laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating pro se litigants are not exempt from rules of procedure and that "[h]aving two sets of rules-a strict set for attorneys and a lenient set for pro se parties-might encourage litigants to discard their valuable right to the advice and assistance of counsel"); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (stating appellate courts should construe pro se briefs liberally). The Texas Rules of Appellate Procedure require an appellant's brief to contain, among other things, "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). When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing "long-standing rule" that inadequate briefing waives issue on appeal); Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 242 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding appellant waived issue because appellant's brief did not contain any citations to relevant authorities or to appellate record for that issue); Walker v. Eubanks,__S.W.3d__, No. 01-21-00643-CV, 2022 WL 3722404, at *4 (Tex. App.-Houston [1st Dist.] Aug. 30, 2022, no pet.) (holding issue waived for review because appellant's brief lacked "substantive argument, record references, or relevant citation to legal authority" with respect to that issue).
Appellate courts are not responsible "for identifying possible trial court error, searching the record for facts favorable to [the appellant's] position, or conducting legal research to support [the appellant's] contentions." Walker,__S.W.3d__, 2022 WL 3722404, at *4 (citing Fredonia State Bank, 881 S.W.2d at 283-84; Canton-Carter v. Baylor Coll. of Medicine, 271 S.W.3d 928, 931 (Tex. App.- Houston [14th Dist.] 2008, no pet.); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.-Dallas 2010, no pet.)). Were they to do so, courts would be abandoning their role as neutral adjudicators and taking on the role of advocate for the appellant. Walker,__S.W.3d__, 2022 WL 3722404, at *4 (citing Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.)); see also Canton-Carter, 271 S.W.3d at 931 ("It would be inappropriate for this court to speculate as to what appellant may have intended to raise as an error by the trial court on appeal. To do so would force this court to stray from our role as a neutral adjudicator and become an advocate for appellant.").
In his brief, Gioffredi argues that he submitted videos to the county clerk's office via email and on a USB drive and designated the videos for inclusion in the appellate record. According to Gioffredi, the county clerk's office informed him that they could not include the videos in the record because "they did not correctly certify them when [he] originally submitted them into evidence." Gioffredi does not identify the specific video exhibits he is referencing, discuss the content of the videos, or explain how these exhibits pertain to the issues on appeal. Gioffredi also does not include citations to any legal authority or to the record supporting his argument. Because he failed to comply with Texas Rule of Appellate Procedure 38.1 and failed to file an adequate brief, Gioffredi waived this issue on appeal. See Walker, 2022 WL 3722404, at *4; Abdelnour, 190 S.W.3d at 242; see also TEX. R. APP. P. 38.1(I) (requiring appellant's brief to contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
We further note that the only reference Gioffredi makes to the purported content of the videos is his sole statement that the evidence relates to "the health and safety hazards" at his apartment, which he claims "are clearly critical to the case and should have been admitted into the County Record." As the County Court stated during the hearing, Riverstone did not dispute that there was a pipe that caused loud knocking noises in Gioffredi's apartment. Nor did it dispute that the noise "materially affect[ed Gioffredi's] health or safety." The only issue in dispute was whether Riverstone made diligent efforts to repair or remedy the condition upon receiving notice of the condition. Because according to Gioffredi's description, the videos pertain to an issue that is not in dispute, we cannot reverse the trial court's judgment on this basis. See TEX. R. APP. P. 44.1(A) (stating judgment cannot be reversed on appeal unless error "probably caused the rendition of an improper judgment," or "probably prevented the appellant from properly presenting the case to the court of appeals").
We overrule Gioffredi's fourth issue.
B. Pretrial Hearing
In his fifth issue, Gioffredi argues the County Court erred by scheduling a pretrial hearing because it delayed the trial in violation of Texas Rule of Civil Procedure 503.4(b). He further contends the County Court erred by rescheduling the trial date after Riverstone, which did not receive notice of the pretrial hearing, did not appear. Gioffredi's reliance on Rule 503.4(b) is misplaced because this rule of procedure only prohibits courts from scheduling "a pretrial conference in an eviction case if it would delay trial." TEX. R. CIV. P. 503.4(b) (emphasis added). Gioffredi does not cite to-nor have we found-any authority extending Rule 503.4 to repair and remedy cases, and given the plain language of the rule, we decline to do so. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) ("Our objective in construing a statute is to give effect to the Legislature's intent, which requires us to first look to the statute's plain language.").
Gioffredi's argument that the County Court erred by rescheduling the trial date is also inadequately briefed. According to Gioffredi, the County Court rescheduled the trial date because Gioffredi did not give Riverstone notice of the pretrial hearing, and, as a result, Riverstone did not appear at the hearing. Gioffredi argues the County Court should have not rescheduled the trial date based on his failure to provide Riverstone with notice because he believed that the court was responsible for providing notice of the hearing to Riverstone because the court requested the hearing, not him.
Gioffredi cites to Texas Rule of Civil Procedure 503.4(a) in support of his argument. Rule 503.4(a) states that the court may set a pretrial conference, at any party's request or on its own, and "[Reasonable notice must be sent to all parties at their addresses of record." Tex.R.Civ.P. 503.4(a). It also lists appropriate issues for the pretrial conference. See id. Aside from citing Rule 503.4(a), which requires that all parties to the lawsuit receive reasonable notice of the pretrial conference, Gioffredi does not cite to the record or any relevant legal authority regarding a trial court's ability to reschedule matters on its docket or the standard of review applicable to this issue. Because he failed to comply with Texas Rule of Appellate Procedure 38.1 and failed to file an adequate brief addressing this point, Gioffredi waived this issue on appeal. See Walker, 2022 WL 3722404, at *4; Abdelnour, 190 S.W.3d at 242; see also TEX. R. APP. P. 38.1(I) (requiring appellant's brief to contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
Furthermore, even assuming without deciding that the County Court erred by rescheduling the trial, we cannot reverse the county court's judgment on this basis unless it "probably caused the rendition of an improper judgment," or "probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a). Gioffredi-who vacated his apartment one month before the pretrial hearing, when his lease ended-does not address how he was harmed by the County Court's decision to reschedule the trial date, or why the alleged error is reversible. Id.
We overrule Gioffredi's fifth issue.
C. Motion for Continuance
In his sixth issue, Gioffredi argues the County Court erred in granting Riverstone's motion for continuance because Riverstone had not yet filed a defense in the county court. We review a trial court's ruling on a motion for continuance for abuse of discretion. See Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.-Houston [1st Dist.] 2008, no pet.). Texas Rule of Civil Procedure 251 states that a court should not hear a motion for continuance until after the defendant has filed an answer. See TEX. R. CIV. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law."). riverstone filed an answer in the justice court and once Gioffredi perfected his appeal, to the County Court, because "the justice court record, including the original papers in the case, was transmitted to, filed in, and became a part of the county court's appeal record for the trial de novo." Brady v. Kane, No. 05-18-01105-CV, 2020 WL 2029245, at *3 (Tex. App.-Dallas Apr. 28, 2020, no pet.) (mem. op.) (citing Tex.R.Civ.P. 506.2). Because Riverstone's answer was on file in the County Court when it moved for a continuance, the court did not abuse its discretion by granting Riverstone's motion for continuance on this basis.
We overrule Gioffredi's sixth issue.
D. Summary Judgment
In his seventh issue, Gioffredi argues the County Court erred in granting Riverstone's motion for summary judgment because a genuine issue of material fact exists as to whether Riverstone received the October 24, 2020 notice to repair or remedy the condition. He further contends that Riverstone "has conceded that the issues complained of in my Repair and Remedy Petition were health and safety hazards and persisted unfixed up to and after the Justice Court hearing, and therefore were not repaired and remedied within the reasonable timeframe of 7 days after receipt of my Final Notice as defined in Law, as the conditions persisted unfixed for over 97 days after receipt of my Final Notice."
Riverstone argues that the only issue in dispute was whether Riverstone failed to respond to Gioffredi's notice in a timely manner, and its summary judgment evidence established that it timely responded to Gioffredi's notice and made diligent efforts to repair or remedy the condition. Riverstone argues that it responded to Gioffredi's request and "made every effort to attempt to repair the issue," as reflected in its motion for summary judgment evidence. Riverstone argues that Gioffredi, who did not respond to its motion for summary judgment, failed to raise a genuine issue of material fact on this issue.
1. Standard of Review
We review summary judgments de novo, taking as true evidence favorable to the nonmovant and indulging reasonable inferences and resolving doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a trial court considering such a motion is restricted to the issues presented in the motion, response, and replies. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341-43 (Tex. 1993); Tex.R.Civ.P. 166a(c). A traditional summary judgment is proper if the movant submits sufficient evidence to establish that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166A(C); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014).
When a party moves for summary judgment on a claim for which it bears the burden of proof, it must show that it is entitled to prevail on each element of its cause of action. Pelco Constr. Co. v. Chambers Cnty., 495 S.W.3d 514, 520 (Tex. App.- Houston [1st Dist.] 2016, pet. denied). A party moving for traditional summary judgment on a claim for which it does not bear the burden of proof must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause. Id. If the movant meets its burden, the burden shifts to the nonmovant to raise a fact issue. Amedisys, 437 S.W.3d at 511. A genuine issue of material fact is raised when the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).
On appeal, a nonmovant who did not respond to a traditional motion for summary judgment may argue that the movant's summary judgment proof was insufficient as a matter of law. See Amedisys, 437 S.W.3d at 511 (noting that if movant fails to meet burden, "the burden does not shift and the non-movant need not respond or present any evidence"); Rhone-Poulenc Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) (explaining that on appeal, "movant still bears the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law").
2. Analysis
On appeal, Riverstone does not dispute that Gioffredi provided it with written notice of the pipe noises in his apartment or that these conditions were health and safety hazards. Rather, Riverstone contends that its summary judgment evidence established it timely responded to Gioffredi's notice and made diligent efforts to repair or remedy the condition. See TEX. PROP. CODE § 92.056(B)(5). The summary judgment evidence establishes that the noise condition Gioffredi first reported on april 1, 2020, was remedied by Riverstone in may 2020, following continued communications and attempts by Riverstone to resolve the problem starting on April 2, 2020.
The condition apparently resumed in August 2020. Gioffredi claims he provided written notice of the condition to Riverstone on October 24, 2020. As it concerns Riverstone's efforts to repair or remedy the condition after it purportedly received notice in October 2020, Riverstone's motion for summary judgment evidence reflects that Riverstone and Gioffredi communicated and exchanged emails regarding the noises at Gioffredi's apartment beginning no later than November 4, 2020, and that Riverstone sent maintenance workers to Gioffredi's apartment over the next few weeks in an attempt to diagnose and repair the problem. The last email attached to Riverstone's motion reflects that, on December 14, 2020, Ashcraft told Gioffredi that someone from Riverstone's maintenance team would be out the next day to look at the pipe. According to Gioffredi, the problem was fixed on January 29, 2021.
Riverstone denies receiving Gioffredi's notice on October 24, 2020. As part of its summary judgment evidence, it claimed it was never "made aware by any other person in the office that a letter was received from Mr. Gioffredi on October 24, 2020, as alleged in Mr. Gioffredi's Original Petition."
Gioffredi suggests that Riverstone's summary judgment evidence was insufficient as a matter of law because Riverstone "has conceded [that the health and safety hazards he complained of] persisted unfixed up to and after the Justice Court hearing, and therefore were not repaired and remedied within the reasonable timeframe of 7 days after receipt of [his] Final Notice as defined in Law, as the conditions persisted unfixed for over 97 days after receipt of my Final Notice." The only evidence Gioffredi cites to are copies of the notices he sent to Allied and Riverstone and the receipts included in the appellate record. While these documents establish October 24, 2020 as the date Riverstone received notice of the conditions from Gioffredi by certified mail, they do not shed any light as to whether Riverstone failed to make "diligent" efforts to repair or remedy the reported conditions under the circumstances. See TEX. PROP. CODE § 92.056(B)(5) (Requiring landlord to make "a diligent effort to repair or remedy the condition after the landlord received the tenant's notice"); § 92.056(d) (stating "there is a rebuttable presumption that seven days is a reasonable time" to repair or remedy noticed condition).
The only summary judgment evidence before the County Court concerning Riverstone's efforts to remedy the condition at Gioffredi's apartment is the evidence Riverstone submitted documenting its ongoing communications and efforts to remedy the pipe condition within days of receiving Gioffredi's complaints. Gioffredi does not contest that these communications took place, nor does he dispute Riverstone's evidence reflecting the attempts Riverstone made to repair the conditions. Rather, the crux of Gioffredi's complaints, both during the hearing on Riverstone's motion for summary judgment and on appeal, is that it took too long for Riverstone to remedy the condition, and he expresses frustration over the time it took to completely repair the problem. Section 92.056, however, does not require the landlord to completely repair or remedy the condition by a date certain; it only requires the landlord to make a "diligent effort" to repair or remedy a condition within a reasonable time. See TEX. PROP. CODE § 92.056(B)(5); see also Hamaker, 2022 WL 714554, at *13 ("While Section 92.056 does not require that the landlord successfully repair or remedy a materially harmful condition, it does require a 'diligent effort.'"). Gioffredi does not point to any evidence raising a question of material fact over whether Riverstone failed to make a diligent effort to repair or remedy the complained of conditions within a reasonable time. He thus failed to raise a genuine issue of material fact, and the County Court did not err in granting summary judgment in favor of Riverstone.
We overrule Gioffredi's seventh issue.
E. Reporter's Record
In his eighth issue, Gioffredi argues that the transcript of the summary judgment hearing is inaccurate because it contains "statements not made in the hearing," and it does not contain statements made by a woman who attended the hearing with Riverstone's counsel or the video he played at the hearing, which shows "the health and safety hazards in [his] apartment." Riverstone argues that the woman was a potential witness who was never called to testify at the hearing and suggests that because she did not testify, nothing the woman may have said at the hearing would impact our review of the County Court's order granting Riverstone's motion for summary judgment. Riverstone also argues that Gioffredi does not identify any alleged statements that were made at the hearing and not included in the transcript, or any "statements not made in the hearing," but included in the transcript, and the video exhibit Gioffredi complains is missing was never admitted into evidence.
If a dispute arises over the accuracy of the reporter's record after the record has been filed in the appellate court, the "court may submit the dispute to the trial court for resolution." Tex.R.App.P. 34.6(e)(3). According to Gioffredi, the woman who appeared at the hearing with Riverstone's counsel identified herself as the "property manager" and "made additional statements in the hearing" that are not included in the transcript. As Riverstone points out, Gioffredi does not indicate the nature or content of the omitted statements or identify the statements he contends were erroneously included in the transcript. He also does not explain how he has been harmed by theses alleged inaccuracies, or how these inaccuracies potentially impact our review of the County Court's order granting Riverstone's motion for summary judgment. Cf. Geister v. Discover Bank, No. 03-15-00471-CV, 2016 WL 1756489, at *3 (Tex. App.-Austin Apr. 27, 2016, no pet.) (mem. op.) (stating appellant "has not identified how alleged errors in how the hearing was transcribed harmed her or would affect our review of the trial court's determination on the summary-judgment motion, as our review is de novo and does not turn on the arguments made and interactions among the trial court and parties at the summary judgment hearing"); Flores v. Grayson Cnty. Cent. Appraisal Dist., No. 05-16-00180-CV, 2016 WL 7384161, at *3 (Tex. App.-Dallas Dec. 21, 2016, no pet.) (mem. op.) (overruling appellant's complaints about alleged inaccuracies in court reporter's record and noting appellant "has failed to put forth any argument about how he has been harmed by these alleged inaccuracies or how they might affect our ability to conduct an appellate review").
Gioffredi's complaint about the video is also unpersuasive. Although the County Court allowed Gioffredi to play the video at the hearing, the video was never admitted into evidence. Furthermore, by his own admission, the video depicts "the health and safety hazards in [his] apartment." As previously discussed, Riverstone does not dispute that there was a pipe that caused loud knocking noises in Gioffredi's apartment, which was the only condition identified in his petition, or that the condition "materially affect[ed Gioffredi's] health or safety." The only issue in dispute was whether Riverstone failed to respond to Gioffredi's notice in a timely manner and failed to make diligent efforts to repair or remedy the condition. Because the omitted video is relevant to an issue that was not in dispute, we cannot reverse the County Court's judgment on this basis. See TEX. R. APP. P. 44.1(A) (Stating judgment cannot be reversed on appeal unless error "probably caused the rendition of an improper judgment," or "probably prevented the appellant from properly presenting the case to the court of appeals").
We overrule Gioffredi's eighth issue.
Conclusion
We affirm the county court's judgment.