Affirmed and Memorandum Opinion filed October 30, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00113-CV

                             SANE LOCKE, Appellant
                                          V.
                        BRIARWOOD VILLAGE, Appellee

              On Appeal from the County Civil Court at Law No. 2
                            Harris County, Texas
                       Trial Court Cause No. 1086625

                  MEMORANDUM                        OPINION


      Appellant Sané Locke sued Briarwood Village, her former apartment complex,
alleging that the complex breached her lease because it could not eliminate a roach
infestation. Briarwood Village filed a counterclaim asserting Locke breached her lease
by failing to give sufficient notice that she was moving out of her apartment. After a
bench trial, the trial court signed a judgment in favor of Briarwood.

      Locke raises multiple issues challenging the trial court’s judgment, which we
liberally construe as a challenge to the legal and factual sufficiency of the evidence
supporting the trial court’s determination that she breached the lease but Briarwood
Village did not. We overrule this issue because there was evidence that, if believed by
the trier of fact, supported the trial court’s implied findings that Briarwood Village
reasonably addressed Locke’s roach infestation complaints and that Locke breached
the lease by failing to give proper notice she was moving out of her apartment. We
therefore affirm the trial court’s judgment.

                                    BACKGROUND

      Locke began renting a Briarwood Village apartment in 2014. She renewed her
lease in late 2015, agreeing that she would reside in the complex until January 2017.
Briarwood Village agreed in the lease to abide by all laws relating to safety and
sanitation and to make all reasonable repairs, subject to Locke’s obligation to pay for
any damage for which she was responsible.

      Locke’s lease also provided that if Briarwood Village did not comply with its
obligations under the lease, Locke “may possibly terminate” the lease and exercise
other remedies provided by the Texas Property Code. To exercise this option, Locke
was required to meet certain specified requirements. Locke first had to be current on
her rent payments. Second, Locke was required to bring the problem to Briarwood
Village’s attention through a written notice requesting repair. Third, Locke had to give
Briarwood Village a reasonable time to fix the problem after sending the notice.
Fourth, if the problem had not been fixed after a reasonable time passed, Locke was
required to make a second written request for repair. If the problem had still not been
fixed after a second reasonable time period passed, Locke could “immediately
terminate” the lease by giving a “final written notice.”

      According to Locke, she began seeing roaches in her apartment soon after
renewing her lease. Locke reported the infestation to the complex management.
Araceli Gil, the complex manager, testified that Locke’s apartment was treated by
                                               2
exterminators after Locke’s initial roach reports in October. Locke continued to report
a roach infestation in her apartment, and the complex management continued sending
its extermination service to treat the problem. Charles Lyons, the vice-president of
Briarwood Village’s extermination company, testified during trial. Lyons testified that
his company treated Locke’s apartment eight times between October 2015 and June
2016. Lyons also testified that his company’s personnel never saw any roaches inside
Locke’s apartment during the eight treatments.

       Locke continued to complain to the complex management about roaches in her
apartment. As a result of Locke’s continuing dissatisfaction with the complex’s
handling of her reported roach infestation, the apartment management offered Locke
the opportunity to terminate her lease “with a 30 day notice to vacate in writing.” Gil
testified that Locke did not accept or reject the early-termination offer. Locke instead
provided notice on June 6, 2016, that she would move out of her apartment on June 13
“due to the ongoing issues with roach/pest infestations.”

       Briarwood Village sent Locke a final account statement notifying Locke that she
owed the complex $872.89.1 According to Gil, Locke did not pay the charge. Locke
instead sued Briarwood Village in justice of the peace court. The complex filed a
counterclaim against Locke alleging that she breached the lease. The justice court
found in favor of the complex and against Locke. It awarded the complex $391.68 in
damages and $1,200 in attorney’s fees. Locke appealed for a trial de novo in the county
court at law. After a short bench trial, the county court found in favor of Briarwood
Village. It awarded the complex $157.19 in damages and attorney’s fees of $1,935.
Findings of fact and conclusions of law were not requested by either party. This appeal


       1
         Gil testified that Locke was charged $298.74 to repair damage to her apartment’s carpet; $70
to repaint a wall, and $715.70 for “insufficient notice penalty charges” totaling $1,084.44. The
complex deducted a rent credit of $211.65 from that total to determine the amount Locke owed.

                                                 3
followed.

                                       ANALYSIS

I.     Sufficient evidence supports the trial court’s judgment.

       In multiple issues on appeal, Locke argues the trial court erred when it rejected
her claims and found instead in favor of Briarwood Village. Because Locke is pro se,
we construe her issues liberally as a challenge to the legal and factual sufficiency of
the evidence supporting the trial court’s judgment in favor of Briarwood Village and
against her own claims. See Garrett v. Graham, No. 14-16-00609-CV, 2017 WL
3927499. at *1 (Tex. App.—Houston [14th Dist.] September 7, 2017, no pet.) (mem.
op.) (“Because Garrett is pro se, we will liberally construe the issues raised in his
brief.”).

       When a bench trial is conducted and the trial court does not make findings of
fact and conclusions of law to support its ruling, all findings necessary to support the
judgment are implied. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002); Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987).
Because the trial court signed a final judgment in favor of Briarwood Village, but did
not sign findings of fact and conclusions of law, we review Locke’s complaint with the
presumption that all findings of fact and conclusions of law were made in favor of the
apartment complex. The judgment of the trial court must be affirmed if it can be upheld
on any legal theory that finds support in the evidence. In the Interest of W.E.R., 669
S.W.2d 716, 717 (Tex. 1984).

       When the appellate record includes the reporter’s and clerk’s records, implied
findings are not conclusive and may be challenged on the basis of legal and factual
sufficiency. BMC Software Belg., 83 S.W.3d at 795. We review the trial court’s
decision for legal sufficiency of the evidence using the same standards applied in


                                           4
reviewing the evidence supporting a jury’s finding. Catalina v. Blasdel, 881 S.W.2d
295, 297 (Tex. 1994). We review the evidence in the light most favorable to the
challenged finding and indulge every reasonable inference that would support it. City
of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence
if a reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. Id. at 827.

      When the appellant challenges the legal sufficiency of an adverse finding on an
issue on which she did not have the burden of proof, she must demonstrate on appeal
that there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil
& Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). A party attacking the legal
sufficiency of an adverse finding on an issue on which she had the burden of proof
must demonstrate that the evidence conclusively establishes all vital facts in support of
the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

      In reviewing factual sufficiency, we must examine the entire record, considering
both the evidence in favor of, and contrary to, the challenged findings. 2900 Smith,
Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). When a party challenges the factual sufficiency of the
evidence supporting a finding for which she did not have the burden of proof, we may
set aside the verdict only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. See In re Estate of Parrimore, No. 14-14-00820-
CV, 2016 WL 750293, at *5 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.)
(mem. op.). When a party attacks the factual sufficiency of an adverse finding on which
she bore the burden of proof, she must establish that the finding is against the great
weight and preponderance of the evidence. Id. We may not pass upon the witnesses’
credibility or substitute our judgment for that of the trier of fact, even if the evidence
would support a different result. 2900 Smith, Ltd., 301 S.W.3d at 746. If we determine

                                            5
the evidence is factually insufficient, we must detail the evidence relevant to the issue
and state in what regard the contrary evidence greatly outweighs the evidence
supporting the trial court’s judgment; we need not do so when affirming the judgment.
Id.

       In challenging the sufficiency of the evidence, Locke argues that her apartment
was overrun by a roach infestation, which she properly reported, and the apartment
complex management failed to remedy the problem within a reasonable time. She also
asserts that she paid her rent in a timely manner and gave proper notification that she
was terminating her lease. In her view, this evidence establishes that the trial court
erred when it determined she breached the lease rather than Briarwood Village.

       In making her argument, however, Locke does not view the evidence as required
by the legal and factual sufficiency standards of review. Even if we assume for
argument’s sake that Locke’s apartment had a significant roach infestation, the record
contains evidence that Briarwood Village promptly addressed the problem and
eliminated the infestation. Further, although Locke argues she complied with the terms
of the lease and gave proper written notice of termination, there was other evidence in
the record, set out above, that she did not. We must presume the trial court, as the trier
of fact, resolved these factual disputes against her. The trial court’s decision to do so
does not render the evidence insufficient. See In re Estate of Parrimore, 2016 WL
750293, at *8. We hold the evidence is legally and factually sufficient to support the
trial court’s implied findings that Locke breached the lease and Briarwood Village did
not. We overrule Locke’s issue on appeal.2


       2
           Locke also appears to argue that she received ineffective assistance of counsel during the
trial of this case. The doctrine of ineffective assistance of counsel does not apply in civil cases unless
there is a constitutional or statutory right to counsel. Locke has not cited any authority establishing
that she had a right to counsel in this breach-of-contract case. See Cherqui v. Westheimer St. Festival
Corp., 116 S.W.3d 337, 343 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“[I]t is well established
                                                    6
II.    Because Briarwood Village did not file a notice of appeal, we do not consider
       its request for additional attorney’s fees.
       In its brief of appellee, Briarwood Village requested that, in addition to affirming
the judgment’s award of damages against Locke, we award a greater amount of
attorney’s fees than the amount included in the judgment.3 In making this request,
Briarwood Village seeks to alter the trial court’s judgment by obtaining greater relief.
Briarwood Village did not, however, file a notice of appeal. Rule 25.1(c) requires a
party seeking to alter the trial court’s judgment to file a notice of appeal. Tex. R. App.
P. 25.1(c). An appellate court may not grant a party who did not file a notice of appeal
more favorable relief than the trial court did. Id. Because Briarwood Village did not,
we cannot consider its request for additional fees. See Reich & Binstock, L.L.P. v.
Scates, 455 S.W.3d 178, 185 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(“Although not couched as such, Scates’s issue would require us to alter the trial court’s
judgment because appellate attorney’s fees were not awarded in the judgment.”).

                                            CONCLUSION

       Having overruled Locke’s issue on appeal and rejected Briarwood Village’s
request for additional attorney’s fees, we affirm the trial court’s judgment.




                                               /s/       J. Brett Busby
                                                         Justice


Panel consists of Justices Busby, Brown, and Jewell.


that the doctrine of ineffective assistance of counsel does not extend to civil cases.”).
       3
         The judgment awarded Briarwood Village $1,935 in attorney’s fees. The trial court did not
award any appellate fees. Despite that, Briarwood Village asks this court to increase the award of
attorney’s fees to $2,820.

                                                     7
