                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00702-CV

                                      John Homer COONLY,
                                      Appellant/Cross-Appellee

                                          v.
           GABLES RESIDENTIAL SERVICES, INC. d/b/a Gables West /Cross-Appellant
             GABLES RESIDENTIAL SERVICES, INC. d/b/a Gables West Avenue,
                               Appellee/Cross-Appellant

                     From the County Court at Law No. 1, Travis County, Texas
                                Trial Court No. C-1-CV-06-00039
                         The Honorable J. David Phillips, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: November 13, 2013

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           This appeal was transferred to this Court from the Austin Court of Appeals. John Homer

Coonly appeals the trial court’s order granting summary judgment and ordering that he take

nothing on his claims against Gables Residential Services, Inc. d/b/a Gables West Avenue

(“Gables”). Gables has filed a cross-appeal, arguing that the trial court erred in failing to award its

attorney’s fees. We affirm in part, and reverse and remand in part.
                                                                                       04-12-00702-CV


                                           BACKGROUND

       On September 8, 2000, Coonly entered into a lease agreement for an apartment located at

300 West Avenue, Austin, Texas (the “Property”) with Post Properties, L.P. (“Post”). Coonly

renewed his lease with Post and signed a new lease on October 1, 2002. On February 20, 2003,

Gables bought the Property from Post. On September 3, 2003, Coonly entered into a lease with

Gables for a term of October 1, 2003 to September 30, 2004. He also signed an “Access Gate

Addendum,” and a “Hold Harmless Notice and Acknowledgement.”

       Coonly kept six motorcycles in the Property’s parking garage. On January 15, 2004, five

of his motorcycles were stolen from the garage and one was vandalized. Coonly sued Gables for

negligence, premises liability, and violations of the Texas Deceptive Trade Practices-Consumer

Protection Act (“DTPA”). Gables moved for a no-evidence and traditional partial summary

judgment on Coonly’s negligence claims. With respect to the traditional motion for summary

judgment, Gables attached the lease agreement, the access gate addendum, and the hold harmless

notice and acknowledgement, arguing that Coonly’s negligence claims were barred by waiver

language in the agreements. The trial court granted Gables’s motion and ordered that Coonly take

nothing on his negligence claims against Gables. Gables then filed a no-evidence and traditional

motion for partial summary judgment on Coonly’s premises liability claims. As before, Gables

argued waiver language in the agreements barred Coonly’s premises liability claims. The trial

court again granted partial summary judgment and ordered that Coonly take nothing on his

premises liability claims. Gables then filed a no-evidence and traditional motion for final summary

judgment on Coonly’s claims under the DTPA. Gables also moved for an award of attorney’s fees.

The trial court granted summary judgment and ordered that Coonly take nothing on his claims

under the DTPA. The trial court, however, declined to award Gables attorney’s fees. Coonly

appeals. Gables filed a cross-appeal with respect to the trial court’s denial of attorney’s fees.
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                                                                                      04-12-00702-CV


                                          STANDARD OF REVIEW

       Gables filed traditional and no-evidence motions for summary judgment. To obtain a

traditional summary judgment under Texas Rule of Civil Procedure 166a(c), a party moving for

summary judgment must show that no genuine issue of material fact exists and that the party is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food Mkts., Inc. v.

Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546,

548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable

inference and resolve any doubts in favor of the respondent. Johnson, 891 S.W.2d at 644; Nixon,

690 S.W.2d at 549. In addition, we must assume all evidence favorable to the respondent is true.

Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A defendant is entitled to summary

judgment if the evidence disproves as a matter of law at least one element of the plaintiff’s cause

of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has

established a right to summary judgment, the burden shifts to the respondent to present evidence

that would raise a genuine issue of material fact. See City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979).

       Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground

that there is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must

grant the motion unless the respondent produces summary judgment evidence raising a genuine

issue of material fact. Id. The respondent is “not required to marshal its proof; its response need

only point out evidence that raises a fact issue on the challenged elements.” TEX. R. CIV. P. 166a(i)

cmt-1997. In reviewing a trial court’s order granting a no-evidence summary judgment, we

consider the evidence in the light most favorable to the respondent and disregard all contrary

evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
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                                                                                         04-12-00702-CV


Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more

than a scintilla of probative evidence to raise a genuine issue of material fact. Id. at 751; see TEX.

R. CIV. P. 166a(i).

     LEASE AGREEMENT, GATE ADDENDUM, AND HOLD HARMLESS ACKNOWLEDGEMENT

       Gables filed its traditional motions for summary judgment based on the Lease Agreement,

the Gate Addendum, and the Hold Harmless Acknowledgement signed by Coonly, which it

attached as summary judgment evidence. The Lease Agreement is a form drafted by the Texas

Apartment Association. Paragraph 24 of the Lease entered into by Coonly and Gables states the

following:

       RESIDENT SAFETY AND PROPERTY LOSS. You and all occupants and
       guests must exercise due care for your own and other’s safety and security,
       especially in the use of smoke detectors, keyed deadbolt locks, keyless bolting
       devices, window latches, and other safety or security devices. You agree to make
       every effort to follow the Security Guidelines on page 5. Window screens are not
       for security or keeping people from falling out.

       Smoke Detectors. We’ll furnish smoke detectors as required by statute or city
       ordinance, and we’ll test them and provide working batteries when you first take
       possession . . . .

       Casualty Loss. We’re not liable to any resident, guest, or occupant for personal
       injury or damage or loss of personal property from fire, smoke, rain, flood, water
       leaks, hail, ice, snow, lightning, wind, explosions, interruptions of utilities, theft, or
       vandalism unless otherwise required by law. We have no duty to remove any ice,
       sleet, or snow but may remove any amount with or without notice. Unless we
       instruct otherwise, you must – for 24 hours a day during freezing weather – (1) keep
       the apartment heated to at least 50 degrees; (2) keep cabinet and closet doors open;
       and (3) drip hot and cold water faucets. You’ll be liable for damages to our and
       others’ property if damage is caused by broken water pipes due to your violating
       these requirements.

       Crime or Emergency. Dial 911 or immediately call local medical emergency, fire,
       or police personnel in case of accident, fire, smoke, suspected criminal activity, or
       other emergency involving imminent harm. You should then contact our
       representative. You won’t treat any of our security measures as an express or
       implied warranty of security, or as a guarantee against crime or of reduced risk of
       crime. Unless otherwise provided by law, we’re not liable to you or any guests or
       occupants for injury, damage, or loss to person or property caused by criminal
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                                                                                     04-12-00702-CV


       conduct of other persons, including theft, burglary, assault, vandalism, or other
       crimes. We’re not obligated to furnish security personnel, security lighting, security
       gates or fences, or other forms of security unless required by statute. We’re not
       responsible for obtaining criminal history checks on any residents, occupants,
       guests, or contractors in the apartment community. If you or any occupant or guest
       is affected by a crime, you must make a written report to our representative and to
       the appropriate local law enforcement agency. You must also furnish us with the
       law enforcement agency’s incident report number upon request.

(emphasis added). Coonly and Gables also entered into an Access Gate Addendum. In part, the

gate addendum stated the following:

       4.     Resident(s) acknowledges and agrees that Resident(s) security is the
       responsibility of the local law enforcement agency and Resident(s) self. In the event
       that Resident(s) are in need of police protection of any kind, Resident(s) will
       contact the local law enforcement agency. Resident(s) should not contact the
       answering service or management office for Resident(s) security needs for this
       could only delay the response time.

       5. Resident(s) agrees the Manager’s installation or use of the Gate does not
       constitute a voluntary undertaking, representation or agreement by Manager to
       provide security to Resident(s), Resident(s) family, Resident(s) guests, or other
       occupancy of Resident(s) unit. There is absolutely no guarantee that the presence
       of a Gate will in any way increase Resident(s) personal security or the safety of
       Resident(s) family or guests or their respective belongings. The Gate is a
       mechanical device and can be rendered inoperative at any time. Manager is not an
       insurer of Resident(s), Resident(s) family, Resident(s) guests or other occupants
       and Resident(s) agrees to assume all responsibility for obtaining insurance to cover
       losses of all types. Resident(s) acknowledges that Resident(s) personal security is
       Resident(s) responsibility.

       6. Resident(s) agrees the Manager is not liable to Resident(s), Resident(s) family,
       Resident(s) guests or other occupants for any injury, damages, or loss whatsoever
       which is caused as a result of any problem, defect, malfunction or failure of the
       performance of the Gate. Resident(s) further agrees that Manager is not liable for
       injury, assault, vandalism or any other crime. Resident(s) acknowledges that
       neither Manager nor Manager’s agents, contractors, employees or representatives
       shall be liable in any way for any disruption in the operation or performance of the
       Gate. In consideration of Manager’s attempt to better serve Resident(s) by
       protecting the Property, Resident(s) agrees that Resident(s) shall never make
       demand upon, look to, institute or prosecute suit against Manager, or any of
       Manager’s agents, contractors, employees or representatives, their heirs,
       successors or assigns, for any damages, costs, loss of personal property, damages
       or injury to Resident(s) person as a result of, arising out of or incidental to the
       installation, operation, repair or replacement, or use of the Gate. This is an express
       covenant not to sue and Resident(s) releases Manager, Manager’s agents,
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                                                                                    04-12-00702-CV


       contractors, employees and representatives, their heirs, successors and assigns of
       and from any and all liability connected with the Gate.

(emphasis added). Coonly also signed a Hold Harmless Notice and Acknowledgement, in which

Coonly agreed that Gables “does not promise, warrant or guarantee the safety and security of

Resident, Resident’s Group (herein defined as Resident’s family, guests, invitees, agents,

employees or other persons associated with Resident) or Resident’s personal property against the

criminal actions of other residents or third parties.” The acknowledgement further provided,

       It is a fact that no security system, including controlled access gates, courtesy
       patrol services or electronic intrusion safety devices can guarantee protection
       against crime. Even elaborate security systems are subject to mechanical
       malfunction, tampering, human error or personnel absenteeism, and can be
       defeated or avoided by clever criminals. Further, repairs to such devices cannot
       always be completed immediately. Therefore, residents should always proceed on
       the assumption that no security systems exist. . . . Therefore, Management does not
       warrant that any security systems, security devices, or services employed at this
       community will discourage or prevent breaches of security, intrusions, thefts or
       incidents of violent crime.

(emphasis added). The acknowledgement further provided the following:

       I have read, understood and agree with the above notice. I have received no
       representations or warranties, either expressed or implied, as to the overall safety
       of the property and/or any security system on the property. Management has not,
       in any way, stated or implied to me that security of person or property is provided,
       promised, guaranteed or that the apartment community was or will be free from
       crime.

(emphasis added).

                                         NEGLIGENCE

       Gables filed a traditional motion for summary judgment on Coonly’s negligence claims,

arguing the language from the documents listed above (collectively “the agreements”) prevents

Coonly from maintaining a lawsuit for negligence. On appeal, Coonly argues the above language

does not bar his negligence claims. He emphasizes that paragraph 24 of the Lease Agreement states

that Gables is not liable for loss of personal property from theft or vandalism “unless otherwise


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                                                                                                     04-12-00702-CV


required by law.” According to Coonly, the “common law of negligence is the applicable law, and

the common law requires tortfeasors to compensate innocent victims of their negligence.” Under

Coonly’s interpretation, however, all common law causes of action would be excluded from the

general waiver of liability provision, thus resulting in a meaningless waiver of liability provision.

We decline to read the provision in such a way as to render it meaningless.

         Coonly also argues that the allegations in his petition do not fall within the above waiver

language in the agreements. In his petition, Coonly alleged that Gables “failed to maintain security

measures, failed to notify residents of inoperative security measures, failed to otherwise guard

against theft during time of inoperative security measures, and failed to adequately respond to

requests to maintain security measures, resulting in the theft of several motorcycles belonging to

Coonly.” Coonly argues that the waiver language above does not bar negligence claims but instead

bars only those claims based on breach of security, or breach of warranty or guarantee. We

disagree. “Exculpatory clauses between landlord and tenant are generally upheld as to future

liability for negligence.” Porter v. Lumbermen’s Inv. Corp., 606 S.W.2d 715, 717 (Tex. Civ.

App.—Austin 1980, no writ). 1 The language above specifically enumerated losses due to theft and

identified the exact circumstances under which Gables sought to relieve itself of liability in this

case. We hold that the trial court did not err in construing the above language to bar negligence

claims brought by Coonly.

         Alternatively, we note that in addition to its traditional motion for summary judgment,

Gables also filed a no-evidence motion for summary judgment on Coonly’s negligence claims.




1
  “Such agreements are invalid, however, where there is such gross disparity of bargaining power as to compel the
lessee to agree.” Porter, 606 S.W.2d at 717. As explained below, there is no evidence of such a gross disparity in this
case.

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                                                                                                 04-12-00702-CV


Coonly failed to attach any summary judgment to its response. 2 Thus, Coonly failed to meet his

burden, and the trial court did not err in granting summary judgment based on Gables’s no-

evidence motion for summary judgment.

                                       PREMISES LIABILITY CLAIMS

        Gables also filed a traditional motion for summary judgment, arguing that Coonly’s

premises liability claims were barred by the language in the above agreements. On appeal, Coonly

argues that the agreements should be held invalid because there is a gross disparity of bargaining

power between the parties and that as a tenant, Coonly was “virtually compelled to submit to such

provision.” However, “adhesion contracts are not per se unconscionable or void.” In re Pearl

Harbor Homes, Inc., 195 S.W.3d 672, 678 (Tex. 2006) (emphasis in original). Unconscionability

is determined on a case-by-case basis by looking at the totality of the circumstances as of the time

the contract was formed. See Pony Express Courier v. Morris, 921 S.W.2d 817, 821 (Tex. App.—

San Antonio 1996, no writ); see also Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex.

App.—Waco 2005, pet. denied). “Proof of unconscionability begins with two broad questions: (1)

the procedural aspect, i.e., how did the parties arrive at the terms in controversy; and (2) the

substantive aspect, i.e., are there legitimate commercial reasons justifying the terms of the

contract.” Ski River, 167 S.W.3d at 136; see also Pony, 921 S.W.2d at 821. “In other words, in

deciding the fairness of a contract’s substantive terms, the court must also consider whether there

were ‘procedural abuses,’ such as an unfair bargaining position between the parties at the time the

agreement was made.” Ski River, 167 S.W.3d at 136. “Under Texas law, the party asserting

unconscionability of a contract bears the burden of proving both procedural and substantive

unconscionability.” Id. (emphasis in original). In determining whether a contract is


2
 Coonly’s response does refer to discovery responses made by Gables. However, Coonly did not attach such responses
as summary judgment evidence.

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                                                                                       04-12-00702-CV


unconscionable, a court examines (1) the “entire atmosphere” in which the agreement was made;

(2) the alternatives, if any, available to the parties at the time the contract was made; (3) the “non-

bargaining” ability of one party; (4) whether the contract was illegal or against public policy; and

(5) whether the contract is oppressive or unreasonable. Id. Factors that may contribute to an

unconscionable bargaining process include the following: (1) knowledge of the stronger party that

the weaker party will be unable to receive substantial benefits from the contract; and (2) knowledge

of the stronger party that the weaker party is unable reasonably to protect his interests by reason

of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of

the agreement. Id.

        Here, there is no evidence in the summary judgment record regarding the particular

circumstances of the respective parties. For example, Coonly states in his brief that he had no

representation of counsel at the time any documents were signed. Coonly, however, did not attach

any summary judgment evidence in his response to support such an assertion. Coonly also claims

that Gables is “‘an award winning, vertically integrated real estate company specializing in the

development, construction, ownership, acquisition, financing and management of multifamily and

mixed-use communities . . . [and] manages approximately 38,000 apartment homes and 400,000

square feet of retail space’ in at least 14 metropolitan areas coast to coast.” However, Coonly also

did not attach any summary judgment evidence to support this assertion. There is simply no

evidence in the summary judgment record to show the respective bargaining positions of the

parties or the sophistication of the parties.

        Coonly next argues that the waiver language contained in the agreements proves that the

agreements are unconscionable. Coonly complains that the Lease Agreement is a “form contract

written by the Texas Apartment Association, Inc. and rife with boilerplate language.” He argues a

“cursory reading of the document further demonstrates its gross one-sided nature regarding the
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                                                                                        04-12-00702-CV


multitude of affirmative duties imposed on the tenant as compared to the near-blanket waiver of

liability by Gables.” He similarly complains that Hold Harmless Notice and Acknowledgement,

and the Gate Addendum contained “boilerplate” language. In reviewing the agreements, we

disagree that the language contained in the agreements makes the agreements per se

unconscionable. Nor does the fact that the Lease Agreement is a form contract written by the TAA

or the fact the agreements contained boilerplate language mean that the agreements are

unconscionable.

        Coonly next argues that the exculpatory clause contained in the Lease Agreement is

unenforceable because the exculpatory language was not conspicuous. He argues that the clause is

buried in boilerplate language. A contract that “fails to satisfy either of the fair notice requirements

[i.e., express negligence and conspicuousness] when they are imposed is unenforceable as a matter

of law.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). The exculpatory

clause in the Lease Agreement is its own paragraph and is set apart by an extra blank line between

it and the previous and subsequent paragraphs to differentiate itself from the body of the contract.

Its title “Casualty Loss” is in bold typeface. There are also two other addendums releasing Gables

from liability, which were separately signed by Coonly. The conspicuous requirement was met.

We hold the trial court did not err in determining that the agreements barred Coonly’s premises

liability claims.

                    DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT

        Gables then filed a third motion for no-evidence and traditional summary judgment on

Coonly’s claims under the DTPA. As summary judgment evidence, Gables again attached the

agreements. It also attached excerpts from Coonly’s deposition testimony. Gables argued that

Coonly’s claims under the DTPA were waived by language in the agreements. It also argued that

any and all representations alleged by Coonly were made by its predecessor, Post. Coonly
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                                                                                     04-12-00702-CV


responded to Gable’s motion, arguing that the waiver language in the agreements did not meet the

statutory requirements under the DTPA. See TEX. BUS. & COMM. CODE ANN. § 17.42 (West 2011).

Coonly further argued that there was summary judgment evidence to support Gables making

representations to Coonly. The trial court disagreed and granted summary judgment.

       On appeal, Coonly first argues that the trial court erred in granting summary judgment

because the language in the agreements relied on by Gables does not meet the statutory

requirements of the DTPA. We agree. Section 17.42(a) provides that any waiver by a consumer of

the provisions of the DTPA “is contrary to public policy,” and “is unenforceable and void” unless

(1) the waiver is in writing and signed by the consumer; (2) the consumer is not in a significantly

disparate bargaining position; and (3) the consumer is represented by legal counsel in seeking or

acquiring the goods or services. TEX. BUS. & COMM. CODE ANN. § 17.42(a) (West 2011). Further,

any waiver must meet the following requirements:

       (1) it must be conspicuous and in bold-face type of at least 10 points in size;

       (2) it must be identified by the heading “Waiver of Consumer Rights,” or words of
           similar meaning; and

       (3) it must be in substantially the following form:

               “I waive my rights under the Deceptive Trade Practices-Consumer
               Protection Act, Section 17.41 et seq., Business & Commerce Code,
               a law that gives consumers special rights and protections. After
               consultation with an attorney of my own selection, I voluntarily
               consent to this waiver.”

Id. § 17.42(c). Here, the waiver language in the agreements does not meet section 17.42(c)’s

requirements. See id.

       Coonly next argues that there was summary judgment evidence that Gables made

representations to him for goods or services that had characteristics which they did not. See TEX.

BUS. & COMM. CODE ANN. § 17.46(b)(5) (West 2011) (stating that under the DTPA, “false,


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                                                                                                    04-12-00702-CV


misleading, or deceptive acts or practices” include “representing that goods or services have . . .

characteristics . . . which they do not have”). He points to his affidavit, which was attached to his

response to Gables’s motion for summary judgment with respect to his DTPA claims. In his

affidavit, Coonly affirms the following:

    •    Prior to the incident complained of, I made between five and ten oral complaints to Gables
         regarding the unsatisfactory operation or complete inoperation of the access gate(s) to the
         garage on Gables’ Property.

    •    On the occasions that I made oral complaints regarding the unsatisfactory operation or
         complete inoperation of the access gate(s) to Gables, I was told something to the effect of,
         “thank you, we’ll take care of it.”

    •    Based upon assertions intimating that the access gate(s) would be repaired, I relied upon
         same and continued to store the motorcycles at issue in the garage.

    •    Prior to the incident complained of, a maintenance worker for Gables indicated to me that
         the access gate(s) were defectively designed and further indicated that the access gate(s)
         would fall off its rails. 3

We conclude that this summary judgment evidence raises an issue of material fact with regard to

Coonly’s claim under the DTPA. 4

         Gables argues that Coonly’s affidavit should not be considered as summary judgment

evidence because it is a “sham” affidavit that contradicts his earlier deposition testimony. See

Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 901 (Tex. App.—Austin 2001, no

pet.) (explaining that an individual cannot file an affidavit to contradict his own deposition

testimony without any explanation for the change in the testimony, for the purpose of creating a

fact issue to avoid summary judgment because such an affidavit presents no more than a “sham”



3
  Gables objected to these statements being considered as summary judgment evidence. It argued that the first
statement was not credible and not susceptible to being readily controvertible. It argued that the second, third, and
fourth statements were inadmissible hearsay and not within the affiant’s personal knowledge. The trial court overruled
Gables’s objections. We find no error by the trial court.
4
  Gables also argues that this evidence should not be considered because it was untimely filed. However, Coonly filed
a motion for leave to late file evidence supporting his response to Gables’s motion for summary judgment on his
DTPA claims. The trial court implicitly granted Coonly leave when it overruled Gables’s objections to the evidence.

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                                                                                     04-12-00702-CV


fact issue). However, in reviewing both Coonly’s affidavit and his deposition testimony, we find

no contradiction between the two. In his deposition testimony, Coonly testifies about

representations regarding security made when he first moved into the apartment (i.e., the

representations by the previous owner). Despite Gables’s attempts to limit Coonly’s testimony to

representations made during that time period, Coonly did not testify so narrowly:

       Q:       Okay. And I am not trying to put words in your mouth here, but to the best
       of your recollection and understanding, you had the communications with
       personnel connected with the apartments when you first leased there, so Documents
       1, 2, and 3; your locater document, your application, and your first lease. Do you
       recall there being discussions of security then but not after that? Am I to understand
       that to be –

       A:     Well, other than complaining about the gate, I don’t remember anything in
       particular, no.

(emphasis added). Thus, we do not interpret the deposition testimony attached by Gables to

directly contradict Coonly’s affidavit and find no error by the trial court in overruling Gables’s

objection.

                                          CROSS-ISSUES

       Gables brings a cross-issue that it was entitled to attorney’s fees under the DTPA because

Coonly brought his DTPA claim in bad faith. Having reversed the trial court’s summary judgment

on Coonly’s DTPA claim, we need not reach this issue.

       Gables also brings a cross-issue arguing that the trial court should have awarded it

attorney’s fees under paragraph 32 of the Lease, which is titled “DEFAULT BY RESIDENT.”

The “other remedies” provision of paragraph 32, which is relied upon by Gables, states the

following:

       Other remedies. If your rent is delinquent and we give you 5 days’ prior written
       notice, we may terminate electricity that we’ve furnished at our expense, unless
       governmental regulations on submetering or utility proration provide otherwise.
       We may report unpaid amount to credit agencies. If you default and move out early,
       you will pay us any amounts stated to be rental discounts in paragraph 10, in
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                                                                                    04-12-00702-CV


       addition to other sums due. Upon your default, we have all other legal remedies,
       including lease contract termination and statutory lockout under Section 92.0081
       of the Property Code. Unless a party is seeking exemplary, punitive, sentimental,
       or personal injury damages, the prevailing party may recover from the non-
       prevailing party attorney’s fees and all other litigation costs. Late charges are
       liquidated damages for our time, inconvenience, and overhead in collecting late rent
       (but are not for attorney’s fees and litigation costs). All unpaid amounts bear 18%
       interest per year from the due date, compounded annually. You must pay all
       collection agency fees if you fail to pay all sums due within 10 days after we mail
       you a letter demanding payment and stating that collection agency fees will be
       added if you don’t pay all sums by that deadline.

Paragraph 32 and its “other remedies” provision clearly relate to when a tenant is in default and

has no applicability to this lawsuit. Thus, we find no error by the trial court in failing to award

attorney’s fees.

                                          CONCLUSION

       Because Coonly raised a material issue of fact with respect to his claim under the DTPA,

we reverse the trial court’s judgment with respect to Coonly’s DTPA claim and remand the cause

for further proceedings. We affirm the trial court’s summary judgment with respect to Coonly’s

claims of negligence and premises liability.



                                                  Karen Angelini, Justice




                                               - 14 -
