Opinion issued November 5, 2019




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-18-00516-CV
                             ———————————
               HOLLY BROOKE SCHAUMLEFFEL, Appellant
                                          V.
              GS/TPRF III HOUSTON MED. CTR., LP, Appellee


               On Appeal from County Civil Court at Law No. 2
                            Harris County, Texas
                       Trial Court Case No. 1110670


                           MEMORANDUM OPINION

      GS/TPRF III Houston Medical Center, LP rented an apartment to Holly

Brooke Schaumleffel. After Schaumleffel failed to pay her rent, GS/TPRF III gave

her notice to vacate and filed a forcible detainer action against her in justice court,

seeking possession of the premises and payment of past due rent. The justice court
rendered judgment in favor of GS/TPRF III. After a de novo trial, the county civil

court at law rendered judgment in favor of GS/TPRF III, awarding it possession of

the property, past due rent, and attorney’s fees.

       On appeal, Schaumleffel raises one issue. She contends that “the trial court

erred in ruling that her proffered retaliatory eviction defense” was not available to

her. See TEX. PROP. CODE § 92.331 (prohibiting retaliation by landlord for certain

acts taken by residential tenants); id. § 92.335 (providing that retaliation is defense

to eviction suit).

       We affirm.

                                        Background

       Schaumleffel and GS/TPRF III entered into a one-year written apartment

lease contract in September 2017. Under the terms of the lease, Schaumleffel’s

monthly rent was $2009.

       The lease required Schaumleffel to pay her rent “on or before the 1st day of

each month” with “no grace period.” The lease provided that “not paying rent on

the 1st of each month is a material breach of this Lease.” The lease further warned,

“If you don’t pay rent on time, you’ll be in default and subject to all remedies

under state law and this Lease.”

       Schaumleffel failed to pay her rent for April 2018. On April 7, 2018,

GS/TPRF III delivered to Schaumleffel a notice to vacate for non-payment of rent,


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requiring her to leave the premises in three days. The notice advised Schaumleffel

that her failure to move out would result in legal action against her.

      Schaumleffel did not move out of the apartment. On April 17, 2018,

GS/TPRF III filed a Petition for Eviction against Schaumleffel in justice court

based on her “failure to pay rent.” For relief, GS/TPRF III requested possession of

the apartment and past due rent.

      Following a trial, the justice court signed a judgment against Schaumleffel

on May 9, 2018. The court awarded GS/TPRF III possession of the apartment and

ordered Schaumleffel to pay $2,560 in past due rent. Schaumleffel appealed the

justice court’s judgment to the county civil court at law by filing a sworn statement

of inability to pay within five days after the judgment was signed. See TEX. R. CIV.

P. 510.9(a).

      Schaumleffel filed an answer in county court. Among her affirmative

defenses she claimed that the eviction suit was brought “in retaliation for her good-

faith exercise of a lawful right or remedy.”

      On June 4, 2018, the county court conducted a bench trial. GS/TPRF III’s

representative, Rebecca Johnson, testified that Schaumleffel never paid April’s

rent. During Johnson’s testimony, the lease and the April 7 notice to vacate for

nonpayment of rent were admitted into evidence. GS/TPRF III’s attorney testified

regarding the amount of attorney’s fees GS/TPRF III had incurred.


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        Schaumleffel also testified. She acknowledged that she did not pay her rent

for April. She stated that she was unable to pay her April rent because she was “out

of work for a month.” Schaumleffel testified that she started working again in May

2018.

        Schaumleffel also testified that she suffers from a medical condition, which

requires the temperature in her apartment to stay below 76 degrees. She stated that

in February 2018 her air conditioning stopped working. She requested GS/TPRF

III to fix it, and the repairs were made. Johnson also testified that repairs were

made to Schaumleffel’s air conditioning at her request in February 2018.

        Schaumleffel’s attorney indicated to the trial court that Schaumleffel was

pursuing an affirmative defense against the eviction suit based on her request for

repairs, implying that the eviction action had been in retaliation for her requests to

repair the air conditioning. The trial court responded that the defense did not apply.

        At the end of trial, the county court rendered judgment in favor of GS/TPRF

III, awarding it possession of the property, as well as $4,285.87 in past due rent

and $1,450 in attorney’s fees.

        This appeal followed.

                                 Retaliatory-Eviction Defense

        In her sole issue, Schaumleffel contends that “the trial court erred in ruling

that her proffered retaliatory eviction defense” was not available to her. She asserts


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that she offered evidence showing that the defense applied. Given Schaumleffel’s

arguments, we construe her issue as a sufficiency-of-the-evidence challenge to the

trial court’s implied findings supporting its conclusion that Schaumleffel was not

entitled to the affirmative defense of retaliatory eviction. See Pham v. Harris Cty.

Rentals, L.L.C., 455 S.W.3d 702, 708-09 (Tex. App.—Houston [1st Dist.] 2014, no

pet.) (construing appellant’s issue that “the trial court erred by dismissing [his]

affirmative defense of release and waiver” to be sufficiency challenge to implied

finding that he had failed to prove that defense).

A.    Standard of Review

      A party challenging the legal sufficiency of an adverse finding on an issue

for which she had the burden of proof at trial must establish, as a matter of law, all

essential facts in support of the issue. See Sterner v. Marathon Oil Co., 767 S.W.2d

686, 690 (Tex. 1989). That is, the party “must show that there is no evidence to

support the factfinder’s finding and that the evidence conclusively establishes the

opposite of the finding.” Indian Oil Co., LLC v. Bishop Petroleum, Inc., 406

S.W.3d 644, 652 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (citing Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)).

      In a factual-sufficiency challenge, we review all the evidence and decide

whether the adverse finding is against the great weight and preponderance of the

evidence. See Dow Chem. Co., 46 S.W.3d at 242. We set the finding aside only if


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the evidence is so weak or the finding is so against the great weight and

preponderance of the evidence that the finding is clearly wrong and unjust. Id.

B.    Analysis

      Schaumleffel correctly points out that Property Code Section 92.331

prohibits a landlord from filing an eviction suit because of (and within six months

of) a tenant’s exercising a right or remedy against a landlord that is granted to the

tenant by a federal or state statute. See TEX. PROP. CODE § 92.331. Retaliation by a

landlord under Section 92.331 is a defense to an eviction suit. Id. § 92.335.

      Schaumleffel asserts that she offered evidence to establish that GS/TPRF III

filed the eviction action to retaliate against her because she asserted her rights

under a federal statute: Section 3604(f)(3)(B) of the Fair Housing Act. See TEX.

PROP. CODE § 92.331(a). Under Section 3604(f)(3)(B), a person with disabilities is

entitled to have her landlord make reasonable accommodations “when such

accommodations may be necessary to afford such person equal opportunity to use

and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). Schaumleffel claims that she

offered evidence showing that she has a disability and that her request for her air

conditioning to be repaired and maintained under 76 degrees was a reasonable

accommodation for her disability. She points out that the evidence showed that she

made a request for her air conditioning to be repaired in February 2018, less than




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six months before GS/TPRF III gave her the notice to vacate in April 2018. See

TEX. PROP. CODE § 92.331(b).

      However, as GS/TPRF III points out, Property Code Section 92.331

prohibits a landlord from retaliating against a tenant by filing an eviction

proceeding “except for the grounds stated by Section 92.332.” Id.

      Property Code Section 92.332 provides in relevant part:

      (b) An eviction or lease termination based on the following
      circumstances, which are valid grounds for eviction or lease
      termination in any event, does not constitute retaliation:

             (1) the tenant is delinquent in rent when the landlord gives
             notice to vacate or files an eviction action[.]

Id. § 92.332(b)(1).

      Here, Johnson and Schaumleffel both testified that Schaumleffel never paid

her April 2018 rent. The lease shows that Schaumleffel’s rent was due April 1

“with no grace periods.” GS/TPRF III delivered the notice to vacate for non-

payment of rent to Schaumleffel on April 7, 2018.

      On appeal, Schaumleffel acknowledges that she had not paid her April rent

when she received the notice to vacate on April 7. Nonetheless, Schaumleffel

claims that she was not “delinquent in rent” because she “had informed [GS/TPRF

III] that she would not be paying rent due to the air conditioner unit failing to

properly cool her apartment.” See id. § 92.335 (providing that “retaliation by the



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landlord under Section 92.331 is a defense and a rent deduction lawfully made by

the tenant under this chapter is a defense for nonpayment of the rent”).

      The record, however, does not support Schaumleffel’s claim that she

“informed [GS/TPRF III] that she would not be paying rent due to the air

conditioner unit failing to properly cool her apartment.” To the contrary, Johnson

testified that Schaumleffel had informed GS/TPRF III that “there was a problem

with her ability to pay rent” for April. (Emphasis added.)

      Schaumleffel testified that she did not pay April’s rent because she was “out

of work for a month” in April and indicated that she could not afford to pay the

rent. No evidence showed that Schaumleffel told GS/TPRF III that she would not

pay April’s rent “due to the air conditioner unit failing to properly cool her

apartment” as she now claims on appeal. Thus, because she was delinquent in rent

when GS/TPRF III gave her notice to vacate, the evidence at trial established that

GS/TPRF III did not engage in retaliatory eviction of Schaumleffel. See id.

§ 92.332(b)(1).

      After reviewing the evidence, we conclude that Schaumleffel did not

establish, as a matter of law, all essential facts in support of her affirmative defense

of retaliatory eviction. Sterner, 767 S.W.2d at 690. Nor has she shown that the trial

court’s implied findings supporting the trial court’s rejection of her retaliatory-

eviction defense are so against the great weight and preponderance of the evidence


                                           8
to be manifestly unjust. See Dow Chem. Co., 46 S.W.3d at 242. We hold that the

evidence was legally and factually sufficient to support the trial court’s implied

findings regarding the defense of retaliatory eviction.

      We overrule Schaumleffel’s sole issue.

                                        Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Chief Justice Radack and Justices Keyes and Landau.




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