                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00108-CV


MICHAEL REID                                                    APPELLANT

                                     V.

UDR TEXAS PROPERTIES, LLC;                                      APPELLEES
UDR TEXAS PROPERTIES, LLC,
SUCCESSOR TO UDR TEXAS
PROPERTIES, LP; UDR THE
CLIFFS, LLC; UDR, INC.; AND
WESTERN RESIDENTIAL, INC.

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         FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 2012-007946-3



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                       MEMORANDUM OPINION1

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     Appellant Michael Reid appeals from the trial court’s take-nothing final

judgment on all of Reid’s claims against appellees UDR Texas Properties, LLC;
     1
      See Tex. R. App. P. 47.4.
UDR Texas Properties, LLC, successor to UDR Texas Properties, LP; UDR The

Cliffs, LLC; UDR, Inc.; and Western Residential, Inc. (collectively and singularly,

UDR).2 He also appeals from the trial court’s judgment awarding UDR damages

on its counterclaim against him. Because Reid points us to no reversible error in

the trial court’s judgment, we affirm. See Tex. R. App. P. 43.2(a).

                               I. BACKGROUND

                                 A. INITIAL LEASE

      Reid lived at a UDR property, The Cliffs, under a lease agreement for a

term that was to end December 27, 2008, at a monthly rent of $733. Reid was

required to pay the monthly rent no later than the third day of the month to avoid

incurring late charges.   The lease provided that its term would automatically

renew on a month-to-month basis if Reid or UDR failed to give at least sixty days’

written notice of termination or intent to move out. If UDR gave Reid notice of a

rent increase at least five days before the sixty-day notice period expired, the

increase would automatically apply unless Reid timely provided the required

notice.

            B. OPTION TO RENEW AND NOTICE OF INTENT TO MOVE OUT

      On October 13, 2008, UDR sent Reid a letter, giving him the option to

renew his lease at varying rental rates that depended on the length of the lease

      2
        As UDR is careful to point out in its appellate briefing, Reid failed to
proffer evidence in the trial court that the UDR entities are a single enterprise
subject to joint liability; however, because this issue is not a necessary
determination in this appeal, we will refer to Appellees collectively as UDR.

                                         2
term. The letter stated that if Reid either did not sign a new lease or failed to

provide a sixty-day notice of his intent to move out, the lease term would

automatically convert to a month-to-month lease at a rental rate of $924 per

month. On October 27, 2008, Reid signed the letter, wrote on the letter that he

would “vacate at the end of current lease term,” and hand-delivered the letter to

UDR’s leasing office. The next day, Reid signed a “Resident’s Notice of Intent to

Move Out,” which was a form notice produced by the Texas Apartment

Association, indicating that he would move out of the apartment on

December 27, 2008. On November 25, 2008, Reid paid $638 to UDR, which

represented a prorated rent amount covering December 1 through December 27,

2008. This amount was also reflected in the notice-of-intent form that Reid had

signed on October 28, 2008.

  C. REID’S WITHDRAWAL OF NOTICE OF INTENT AND UDR’S NOTICE TO VACATE

      On December 1, 2008, Reid informed UDR’s leasing office that he wanted

to cancel his move-out notice. Christina Feick, a community manager for UDR,

drew a diagonal line through the form that Reid had signed on October 28, 2008,

and wrote “cancel” above the line. Both Reid and Feick signed the form by the

word “cancel.” Reid then initialed the October 13, 2008 letter, indicating that he

would renew his lease for six months at a monthly rental rate of $755. Reid also

agreed to pay $97 for the rent due for December 28 through 31, 2008, which was

handwritten on same letter. Feick signed and dated the letter by Reid’s renewal

choice. Accordingly, UDR took Reid’s apartment off the rental market. A new

                                        3
lease was prepared, reflecting the new lease term and rental rate, but Reid never

signed this lease or paid the remaining rent due for December 2008.

      On December 5, 2008, UDR sent Reid a notice to vacate, noting that he

owed rent for December 2008—the amount due for December 28 through

December 31, 2008—and stating that his “rights of occupancy and possession

are . . . terminated.”3 On December 27, 2008, Reid moved out of the apartment

and dropped off his keys at UDR’s leasing office, without giving UDR his

forwarding address. But because UDR believed that Reid had not complied with

the notice requirements of his lease and the October 13, 2008 letter that had

been modified on December 1, 2008, UDR considered Reid to be a month-to-

month tenant as of January 2009. On January 10, 2009, UDR sent Reid a “[f]inal

account statement” to his address at The Cliffs, reflecting that he owed

$2,284.25, which included credits and fees due as well as $924 in rent—the

month-to-month rate noted in the October 13, 2008 letter—for both January 2009

and February 2009. In late February 2009, UDR leased Reid’s former apartment

to a new tenant.

                           D. ALLEGATIONS AND TRIAL

      On December 6, 2012, Reid filed suit against UDR and raised claims for

violations of the property code, breach of contract, failure to properly remit his


      3
      Under the lease, this termination of his occupancy and possession rights
based on his default did not release him from “liability for future rent or other
Lease Contract obligations.”

                                        4
security deposit, violation of the Debt Collection Fair Practices Act, fraud,

fraudulent inducement, retaliatory eviction, and violations of the Deceptive Trade

Practices Act.4 Reid sought damages, including for his emotional distress based

on UDR’s alleged intentional conduct, and the recovery of attorney’s fees. On

July 5, 2013, the trial court granted Reid’s counsel’s motion to withdraw based on

“[c]onflicts.”5 At no point in the trial court or in this court has Reid asserted that

he is indigent and entitled to proceed without advance payment of costs. Reid

amended his petition twice—once on February 7, 2014, and once on September

26, 2014.6 UDR filed a counterclaim for breach of contract on September 30,

2014.

        These claims were tried to the court in a two-day trial, occurring on

October 15 and November 24, 2014. After Reid rested his case, the trial court

directed a verdict in UDR’s favor on Reid’s claims for violations of the property

      Our recitation of Reid’s claims is based on his second amended petition,
        4

which was filed on September 26, 2014. See Tex. R. Civ. P. 65.

        The clerk’s records reflect that other than UDR’s original answer, no
        5

documents were filed between the date Reid filed his original petition and the
date his counsel moved to withdraw seven months later. There was some
indication at a pretrial hearing that Reid’s counsel and UDR made some
settlement attempts and conducted extensive discovery before counsel withdrew.
        6
        Reid also filed two supplemental petitions in November 2014 that
attempted to add new claims against UDR, but Reid filed them after trial began in
October 2014 and without leave of court; thus, they were untimely. See Tex. R.
Civ. P. 63, 66. See generally Retzlaff v. Tex. Dep’t of Crim. Just., 135 S.W.3d
731, 737 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (op. on reh’g) (“[A]
supplemental pleading is not an appropriate method of stating a new cause of
action . . . .”).

                                          5
code, retaliatory eviction, and fraudulent inducement. See Tex. R. Civ. P. 268.

After UDR rested and both sides closed, the trial court rendered a take-nothing

judgment on Reid’s remaining claims and concluded that Reid had breached the

lease, entitling UDR to recover $1,939.057 in actual damages and $3,000 in

attorney’s fees. The trial court signed a final judgment, reflecting these amounts,

on December 4, 2014.

        Reid filed a request for findings of fact and conclusions of law; a motion for

new trial; and a motion to modify, correct, or reform the judgment. See Tex. R.

Civ. P. 296, 320, 329b.       The trial court entered findings and conclusions in

support of its judgment and specified that Reid had failed to introduce sufficient

evidence as to at least one element of each of his pleaded claims and that he

had breached the lease with UDR, entitling UDR to its damages and attorney’s

fees.       Reid’s motion for new trial and motion to correct the judgment were

overruled by operation of law. See Tex. R. Civ. P. 329b(c), (g).

                             E. APPELLATE ALLEGATIONS

        Reid now appeals and argues in several issues, which he appears to

group under four headings, that the trial court erred by failing to continue the trial

at his request and to grant further discovery, by not concluding that UDR’s

breach-of-contract counterclaim was time-barred, by failing to find that UDR


       This amount represented two months’ rent (at $733 per month) plus
        7

$623.05 for a “relet fee” minus the $150 security deposit Reid paid at the
beginning of the lease term.

                                           6
breached the lease, and by finding that Reid had breached the lease. Reid’s

brief is difficult to understand and includes few citations to the record. We were

unable to precisely identify which findings Reid attacks or on what specific bases

he argues they and the attendant conclusions were in error; but, we will address

Reid’s issues as he appeared to brief them—as four main issues attacking the

trial court’s failure to grant a continuance and extend discovery based on his lack

of notice of UDR’s counterclaim, the trial court’s failure to apply limitations to

UDR’s counterclaim, and the trial court’s conclusions that Reid breached the

lease but that UDR did not.        See Tex. R. App. P. 38.9.          Although Reid

represented himself at trial and does so again on appeal, he is held to the same

standards as is a licensed attorney.       See In re P.S., No. 02-16-00008-CV,

2016 WL 6277374, at *3 (Tex. App.—Fort Worth Oct. 27, 2016, no pet. h.).

                                II. CONTINUANCE

      Reid asserts that the trial court erred by failing to continue the trial setting

at his request because he did not receive timely notice of UDR’s counterclaim.

See Tex. R. Civ. P. 63, 251. Reid filed suit in December 2012. UDR filed its

counterclaim on September 30, 2014. The first day of trial was October 15,

2014. On October 14, 2014, Reid moved to continue the trial, arguing that he

needed more time to address UDR’s counterclaim and to conduct further

discovery.   When the trial court called the case for trial the next day, Reid

requested “additional discovery” and again asked for a continuance on the

ground that UDR’s counterclaim “operates as a surprise” because it “was filed 15

                                          7
days before the trial date.” The trial court denied Reid’s motion for continuance

as untimely under the court’s local rules and stated that UDR’s counterclaim did

not operate as a surprise to Reid. See Tex. R. Civ. P. 63; Tarrant (Tex.) Civ. Cts.

Loc. R. 3.02.

        We review the denial of a motion for continuance for an abuse of

discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.

2004). Reid apparently argues that because he did not receive forty-five days’

notice of UDR’s counterclaim as required by rule 245, the trial court had no

discretion to deny the continuance and was required to grant further discovery.

See Tex. R. Civ. P. 245. But rule 245 applies to the trial court’s notice to the

parties of the scheduled date for trial, which Reid does not challenge. Reid’s

motion for a continuance was untimely filed, as found by the trial court; therefore,

the trial court did not abuse its discretion by denying Reid’s motion, which was

filed the day before trial began. See In re M.D.W., No. 02-13-00013-CV, 2013

WL 3326664, at *2 (Tex. App.—Fort Worth June 27, 2013, pet. denied) (mem.

op.).

                                III. LIMITATIONS

        Reid also argues that the trial court erred by failing to find that UDR’s

counterclaim was barred by limitations because it filed its counterclaim on

September 30, 2014, which was more than four years after its claim accrued in

January 2009. Limitations is an affirmative defense. See Tex. R. Civ. P. 94. As

such, Reid had the burden to plead and prove this defense to UDR’s

                                         8
counterclaim. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.

1988). An affirmative defense that is not pleaded is waived. See Caston v.

Wiley, No. 14-14-01001-CV, 2016 WL 3131666, at *5 (Tex. App.—Houston [14th

Dist.] June 2, 2016, no pet.) (mem. op.). At no point before the trial court’s final

judgment did Reid plead or attempt to prove the affirmative defense of limitations

in response to UDR’s counterclaim, and the issue was not tried by consent.8 In

response to UDR’s pleaded affirmative defense of limitations regarding Reid’s

claims, Reid contended that limitations should be tolled; however, Reid never

raised limitations as to UDR’s counterclaim until his motion for new trial. This

was too late to equate to an affirmative pleading raising this defense as to UDR’s

counterclaim. See Storck v. Tres Lagos Prop. Owners Ass’n, 442 S.W.3d 730,

745 (Tex. App.—Texarkana 2014, pet. denied); Hollingsworth v. Hollingsworth,

274 S.W.3d 811, 814–15 (Tex. App.—Dallas 2008, no pet.). Thus, we cannot

conclude that the trial court erred by failing to apply an affirmative defense that

Reid never properly pleaded.9


      8
       On the first day of trial, UDR’s counsel stated, “[Reid] filed an affirmative
defense of statute of limitations this morning, I believe.” The clerk’s records
however show that nothing was filed on the first day of trial. The day before trial,
Reid filed an answer to UDR’s counterclaim and an emergency motion to
continue but did not plead the affirmative defense of limitations in either filing.
      9
       Even though UDR admits in its brief that its counterclaim was barred by
the applicable statute of limitations, we are not bound by this concession and
must independently determine as a matter of law whether the judgment
contained reversible error. See, e.g., Colo. Republican Fed. Campaign Comm.
v. Fed. Election Comm’n, 518 U.S. 604, 622, 116 S. Ct. 2309, 2319 (1996) (“[W]e
are not bound to decide a matter of constitutional law based on a concession by
                                         9
                           IV. BREACH OF THE LEASE

      Reid finally argues that the trial court erred by concluding that he had

breached the lease and that UDR, by issuing the notice to vacate, had not. He

first asserts that UDR’s notice to vacate canceled the lease, precluding UDR’s

attempt to recover for Reid’s alleged breach of it. The trial court found that Reid

failed to properly and timely notify UDR that he intended to move out and that

although Reid vacated the apartment after receiving UDR’s notice to vacate,

UDR was entitled to damages arising from Reid’s prior breach.

      A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions and are reviewable for legal and factual sufficiency of

the evidence to support them by the same standards.           Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). As best we can tell, Reid contends that the

trial court’s findings and conclusions regarding breach are supported by legally

insufficient evidence.10   Accordingly, we may sustain his contentions only if


the particular party before the Court as to the proper legal characterization of the
facts.”); White v. Moore, 760 S.W.2d 242, 243–44 (Tex. 1988) (concluding will
language ambiguous despite parties’ agreement that will was unambiguous);
Jackson Hotel Corp. v. Wichita Cty. Appraisal Dist., 980 S.W.2d 879, 881 n.3
(Tex. App.—Fort Worth 1998, no pet.) (holding parties could not concede that
motion was timely filed in trial court because parties cannot concede necessary
question of law (citing Haas v. Voigt, 940 S.W.2d 198, 201 n.1 (Tex. App.—San
Antonio 1996, writ denied))).
      10
         Reid consistently asserts that he established UDR’s prior, material
breach “as a matter of law,” that UDR failed to establish its counterclaim “as a
matter of law,” or that the judgment was erroneous “as a matter of law.” Although
Reid states in an isolated heading that the evidence was “both legally and
factually sufficient” to show UDR materially breached the contract, the tenor of
                                        10
(1) the record discloses a complete absence of evidence of a vital fact, (2) the

court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact

is no more than a mere scintilla, or (4) the evidence establishes conclusively the

opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex.

2014) (op. on reh’g).

      Here, the trial court heard evidence that Reid had failed to timely and

properly notify UDR that he intended to move out of the apartment as required by

the lease. Under the lease, therefore, UDR was entitled to issue a notice to

vacate to Reid while still enforcing its right to collect future rental payments due,

which it did.   UDR does an admirable job of reciting the specific evidence

supporting each of the trial court’s necessary findings supporting its judgment

and of attempting to refute Reid’s inscrutable arguments. It would not aid judicial

economy to repeat UDR’s apt arguments that the evidence regarding breach was

sufficient other than to state that Reid has failed to establish that the evidence

was legally insufficient to support the trial court’s findings and attendant

conclusions under any of the Castillo factors.




his arguments is that he established his claims as a matter of law and that no
evidence supported UDR’s counterclaim, i.e., he challenges the legal sufficiency
of the evidence to support the trial court’s findings and conclusions.

                                         11
                                V. CONCLUSION

      Concluding that there is no error in the trial court’s judgment, we overrule

Reid’s issues and affirm the trial court’s judgment.


                                                       /s/ Lee Gabriel

                                                       LEE GABRIEL
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DELIVERED: November 23, 2016




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