      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00556-CV



                                  Texan Pearl, LLC, Appellant

                                                 v.

      Victoria Koegel, Joseph W. Koegel, Sarah Evans, and Thomas Evans, Appellees


             FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY
       NO. C-1-CV-13-001208, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                            MEMORANDUM OPINION

               In this appeal following a bench trial, Texan Pearl, LLC raises three issues,

challenging the county court’s judgment in favor of Victoria Koegel and Sarah Evans, who leased

an apartment from Texan Pearl, and their fathers, Joseph W. Koegel and Thomas Evans, who

guaranteed the lease at issue.1 The county court concluded that Texan Pearl retained Sarah’s and

Victoria’s security deposits in bad faith and converted personal property belonging to Victoria. For

the following reasons, we affirm the county court’s judgment.


                                        BACKGROUND

               Victoria and Sarah leased an apartment from Texan Pearl in Austin with two other

women who are not parties to this lawsuit. Texan Pearl was managed by the property management




       1
          Because the individual parties share the same last names, we refer to them by their
first names.
company, Ely Properties, and Matthew (Matt) Ely was Texan Pearl’s property manager and leasing

agent. In February 2011, Victoria and Sarah signed the lease, which was for the term of

August 8, 2011, to July 31, 2012. Thomas and Joseph guaranteed their daughters’ obligations in the

lease, and Victoria and Sarah each paid a security deposit of $250. Although the reasons for doing

so were disputed at trial, Sarah and Victoria signed a lease for an apartment with Texan Shoal Creek

for the time period of January 13, 2012, to July 31, 2012, through the same management company,

Ely Properties. Matt Ely’s brother, Mitch Ely, was a member of the company that owned both

Texan Pearl and Texan Shoal Creek.

               Sarah and Victoria paid rent through the end of January 2012 for the Texan Pearl

apartment, but they moved out of that apartment and into the Shoal Creek apartment around

January 13, 2012, and began paying rent for that apartment. At that time, Victoria did not turn in

her keys for the Texan Pearl apartment and left some personal property in the apartment. When she

returned to pick up her property before the end of January, she discovered that the locks to the

apartment had been changed and her property was no longer there. According to Matt Ely, a

cleaning crew “got rid of” any property left in the apartment after the tenants moved out.

               Texan Pearl did not return the security deposits of Sarah and Victoria. Matt Ely

emailed a “final accounting” for each tenant on March 7, 2012, and a “revised final accounting” on

March 28, 2012. The “revised final accounting” reflected a balance owed by each tenant based on

the amount of rent owed for the remainder of the lease and charges for carpet cleaning and

replacement, painting, maid service, and a re-letting fee, offset by a “rent credit” from new tenants.




                                                  2
Ely Properties secured two tenants for the Texan Pearl apartment at the end of February 2012, and

it later secured another tenant at the beginning of April 2012.

               Appellees did not make additional payments on the lease, and Texan Pearl sued

appellees in justice court for breach of the lease. Appellees counterclaimed, and the case was tried

to the justice court. After the justice court entered a take nothing judgment on the parties’ claims,

Texan Pearl appealed to the county court, seeking to recover contractual damages, including

accelerated rent after credits, re-letting fees, attorney’s fees, and costs of repairs to the apartment

“beyond normal wear and tear.” Appellees answered and counterclaimed for damages based on

Texan Pearl’s alleged violations of the Property Code, including its failure to return the security

deposits. See Tex. Prop. Code § 92.109 (addressing liability of landlord). Victoria also sought

damages for the conversion of her personal property that remained in the Texan Pearl apartment after

January 13, 2012.

               The case was tried to the bench. The witnesses included Matt Ely, Thomas, Joseph,

and Victoria, and the exhibits included the leases, photographs of the apartment and Victoria’s

personal property, and correspondence between the parties. Texan Pearl’s version of events was that

Sarah and Victoria agreed to vacate the Texan Pearl apartment in lieu of eviction and that they were

responsible for the remainder of rent owed on the lease offset by rent payments made by the new

tenants. Texan Pearl also contended that appellees were responsible for their share of repair and

cleaning costs to the apartment because the damage to the apartment was beyond normal wear and

tear. Appellees’ position was that the move between apartments was triggered by conflict among

the roommates, that the parties agreed to replace the Texan Pearl lease with the Shoal Creek lease



                                                  3
for the remainder of the term of the Texan Pearl lease, that Texan Pearl acted in bad faith when it

did not return the security deposits, see id. § 92.103(a) (generally obligating landlord to refund

security deposit within 30 days), and that Texan Pearl converted Victoria’s personal property.

               Based on its conclusion that Texan Pearl withheld the security deposits in bad faith,

the county court rendered judgment awarding statutory damages to Sarah in the amount of $850 and

to Victoria in the amount of $850, along with the amount of $1,200 for the conversion of her

personal property. See id. § 92.109(a) (authorizing award of “amount equal to the sum of $100,

[and] three times the portion of the deposit wrongfully withheld” against “landlord who in bad faith

retains a security deposit in violation of this subchapter”). The trial court also entered findings of

fact and conclusions of law. Among its findings of fact, the county court found:


       •       Matthew Ely acted as agent for Texan Pearl, LLC in negotiating the move to
               another property owned by another corporation (Shoal Creek) which
               corporation was owned, at least in part, by his brother Mitch Ely.

       •       In executing a new lease for the new apartment at the Shoal Creek property,
               Matthew Ely was acting as agent, at least apparently, for both Shoal Creek
               and for Texan Pearl.

       •       Ownership of Texan Pearl and Shoal Creek (through Mitch Ely) was aware
               and approved the replacement of the Texan Pearl lease with the lease at
               Shoal Creek.


The county court’s conclusions of law included that the lease at Shoal Creek “operated as a

cancellation of the lease at Texan Pearl” and “operated as a writing to terminate and replace the lease

at Texan Pearl” and that “Matthew Ely as agent or apparent agent for Texan Pearl had express




                                                  4
authority to modify the terms and/or replace the lease at Texan Pearl under the terms of the contract.”

This appeal followed.

                                             ANALYSIS


Standard of Review

                A trial court’s findings of fact are subject to review for legal and factual sufficiency

of the evidence by the same standards applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772

(Tex. 1996); see City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005) (describing review

of evidence under legal and factual sufficiency standards of review). Appellate courts “view the

evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d

at 807. We review a trial court’s conclusions of law de novo and will uphold the conclusions if the

judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).


Theories of Ruling

                In its first issue, Texan Pearl argues that the county court erred in rendering judgment

against Texan Pearl “because the theories on which it based its ruling were precluded as a matter of

law.” Texan Pearl argues that the county court based its ruling on improper theories because there

was no written evidence to satisfy the statute of frauds or to support a finding of the mutual assent

necessary for either release, modification, or novation of the lease. See Tex. Bus. & Com.

Code § 26.01 (listing promises and agreements that must be in writing); White v. Harrison,



                                                   5
390 S.W.3d 666, 674–75 (Tex. App.—Dallas 2012, no pet.) (discussing statute of frauds and

modification, release, and novation of lease); see also Dynegy, Inc. v. Yates, 422 S.W.3d 638,

641–42 (Tex. 2013) (discussing statute of frauds). On this basis, Texan Pearl challenges the county

court’s conclusions that the “lease at Shoal Creek operated as a cancellation of the lease at Texan

Pearl” and “as a writing to terminate and replace the lease at Texan Pearl.” It argues that there was

no written evidence to support a finding that the Shoal Creek lease operated as a replacement lease

because the Shoal Creek lease was between appellees and a separate entity and the statute of frauds

prevents oral agreements that materially alter the terms of that lease. To support its position, Texan

Pearl relies on section 26.01(b)(6) of the Business and Commerce Code because the lease was signed

in February 2011 and the term of the lease ended in July 2012. See Tex. Bus. & Com. Code

§ 26.01(b)(6) (placing “agreement which is not to be performed within one year from the date of

making the agreement” within purview of statute of frauds).

               To preserve its arguments based on the statute of frauds, however, Texan Pearl was

required to raise these arguments with the county court. See South Plains Lamesa R.R., Ltd. v. Kitten

Family Living Trust, No. 07-09-0343-CV, 2011 Tex. App. LEXIS 7300, at *34–35 (Tex.

App.—Amarillo Sept. 6, 2011, no pet.) (mem. op.) (concluding party waived its right to assert statute

of frauds on appeal when it failed to object on that ground to evidence of oral agreement); Maxey

Village, Ltd. v. Web Serv. Co., No. 14-00-00908-CV, 2001 Tex. App. LEXIS 8443, at *2–3 (Tex.

App.—Houston [14th Dist.] Dec. 20, 2001, no pet.) (mem. op., not designated for publication)

(concluding that party waived statute of frauds argument because party failed to object to evidence

on that basis); see also Tex. R. App. P. 33.1 (addressing preservation for appellate review); Tex. R.



                                                  6
Civ. P. 94 (listing statute of frauds as affirmative defense); Bohls v. Brazelton, 336 S.W.2d 208, 211

(Tex. Civ. App.—Austin 1960, writ ref’d n.r.e.) (noting that party waives statute of frauds if party

fails to timely object on this basis to evidence of agreement that allegedly violates statute of frauds).

It failed to do so.

                At trial, the Shoal Creek lease was admitted as an exhibit, and Joseph testified at trial,

“The Shoal Creek lease is the written replacement of the Texan Pearl lease.” He also testified that

he spoke to Matt Ely about replacing that lease for the Texan Pearl lease in “exactly those terms” and

that he “wasn’t going to be on the hook for two leases.” He further testified that “Mr. Ely clearly

spoke to me in terms of moving my daughter from one property that he controlled to another

property that he controlled” as a solution to the situation of the roommates’ conflict. Consistent with

Joseph’s testimony, other evidence showed that Matt Ely was acting as the agent for both properties.

Matt Ely did not require rental applications for the Shoal Creek apartment, conduct a move-out

inspection, or inform appellees that they were delinquent in paying their rent when they did not pay

rent on February 1 or March 1 for the Texan Pearl apartment. Matt Ely also answered, “Correct”

when asked by the county court if he was “the management and the sole leasing agent for those two

properties,” and admitted that his brother Mitch was a member of the company that owned both

properties and that the owners were aware and authorized Sarah and Victoria’s move from the

Texan Pearl apartment to the Shoal Creek apartment. Texan Pearl did not object to this evidence




                                                    7
or any other evidence based on the statute of frauds. Consequently, Texan Pearl waived its statute

of frauds arguments.2

               Further, even if Texan Pearl had preserved its statute of frauds argument, we would

not find it persuasive. Because the lease’s term—August 8, 2011, to July 31, 2012—was for less

than one year, it was not subject to the statute of frauds. See Tex. Bus. & Com. Code § 26.01(b)(5)

(placing “lease of real estate for a term longer than one year” within purview of statute of frauds);

see, e.g., Mohammed v. D. 1050 W. Rankin, Inc., 464 S.W.3d 737, 745 (Tex. App.—Houston

[1st Dist.] 2014, no pet.) (citing section 26.01(b)(5) in determining if modification to

multi-year lease agreement subject to statute of frauds); Pettigrew v. Reeves, No. 05-12-00455-CV,

2014 WL 6546980, at *2–3 n.1 (Tex. App.—Dallas Oct. 22, 2014, no pet.) (mem. op.) (holding that

section 26.01(b)(6) was “inapplicable” to one-year lease agreement and “any corresponding

agreement to share the rent”); Rymes v. Caribbean Cowboy, LLC, No. 04-12-00032-CV, 2013 WL

363405, at *3 (Tex. App.—San Antonio Jan. 30, 2013, pet. denied) (mem. op.) (applying section

26.01(b)(5) and concluding real estate leases with terms for “life of tenants” were not subject to

statute of frauds); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000)

(describing “traditional statutory construction principle that the more specific statute controls over

the more general”).




       2
          Texan Pearl also focuses on a provision in its lease that required modifications to be in
writing, but the Shoal Creek lease was in writing. As stated above, Matt Ely testified that his brother
Mitch, who was a member of the company that owned both properties, approved Sarah’s and
Victoria’s move from the Texan Pearl apartment to the Shoal Creek apartment. The Shoal Creek
apartment was vacant at the time, and Sarah’s and Victoria’s rent for the Shoal Creek apartment was
higher than it had been for the Texan Pearl apartment.

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                For these reasons, we overrule Texan Pearl’s first issue.3


Findings of Bad Faith Retention of Security Deposits

                In its second issue, Texan Pearl argues that the county court erred by finding bad faith

retention of the security deposits. Texan Pearl argues that: (i) as a matter of law, no accounting was

due under section 92.109 of the Property Code, (ii) any statutory presumption of bad faith was

rebutted by the great weight and preponderance of the evidence that established Texan Pearl’s good

faith, and (iii) the great weight and preponderance of the evidence demonstrated that the deductions

made to the security deposit were reasonable. As part of this issue, Texan Pearl also challenges the

county court’s finding of fact that “No accounting was ever sent to tenants for their security deposits

of $250 each.” Texan Pearl presented evidence that it sent an “accounting” to appellees on

March 7, 2012, and a revised one a few weeks later.

                For purposes of this appeal, the Property Code requires a landlord to “refund a

security deposit to the tenant on or before the 30th day after the date the tenant surrenders the

premises.” Tex. Prop. Code § 92.103(b). “Before returning a security deposit, the landlord may


       3
            In a separate section of its brief, although not raised by issue, Texan Pearl urges that the
county court erred in failing to award contractual damages to Texan Pearl. Texan Pearl urges that
it is entitled to damages for re-letting fees, accelerated rent, and attorney’s fees because Sarah and
Victoria breached the lease. This argument is premised primarily on Texan Pearl’s contention that
the trial court erred by considering extrinsic evidence that the parties agreed to cancel the lease and
replace it with the Shoal Creek lease. As stated above, Texan Pearl has not preserved this argument.
Texan Pearl also focuses on evidence that an unauthorized dog was brought into the apartment and
one of the other roommates put graffiti on a wall in a common area of the apartment building. Even
if the county court found this evidence credible, however, the county court could have found based
on the evidence that Texan Pearl was not damaged by the dog or the graffiti. See Roundville
Partners, L.L.C. v. Jones, 118 S.W.3d 73, 82 (Tex. App.—Austin 2003, pet. denied) (listing
damages as element of breach of contract claim).

                                                   9
deduct from the deposit damages and charges for which the tenant is legally liable under the lease

or as a result of breaching the lease,” but the “landlord may not retain any portion of a security

deposit to cover normal wear and tear.” Id. § 92.104(a), (b). If the landlord retains all of the security

deposit, as is the case here, the landlord is required to provide a “written description and itemized

list of all deductions” unless the “tenant owes rent when he surrenders possession of the premises”

and “there is no controversy concerning the amount of rent owed.” Id. § 92.104(c). “A landlord who

fails either to return a security deposit or to provide a written description and itemization of

deductions on or before the 30th day after the date the tenant surrenders possession is presumed to

have acted in bad faith.” Id. § 92.109(d); see id. § 92.109(a), (b) (listing available statutory damages

when landlord acts in bad faith); Grace v. Thompson, No. 03-12-00729-CV, 2014 WL 3055958, at

*3 (Tex. App.—Austin July 3, 2014, pet. denied) (mem. op.) (noting that “landlord acts in bad faith

when she acts in disregard of the tenant’s rights and with the intention of depriving the tenant of a

refund lawfully due”).

                According to Texan Pearl, it was not obligated to return the security deposits or

provide a list of deductions because there was a balance owed for accelerated rents when Sarah and

Victoria vacated the apartment and “there [was] no controversy concerning the amount of rent owed”

“until after the first accounting was sent.” See Tex. Prop. Code § 92.104(c). But a central dispute

between the parties that resulted in this case was whether Sarah and Victoria owed rent on the lease

after January 2012. Thus, because there was a controversy concerning the amount of rent owed,

section 92.104(c) does not support Texan Pearl’s position. See id. Because Texan Pearl did not

return the security deposits and did not timely provide a list of deductions within the statutory period,



                                                   10
the county court correctly presumed that Texan Pearl acted in bad faith. See id. § 92.109(d). Thus,

it was Texan Pearl’s burden to present evidence to defeat this presumption, i.e. that it acted in good

faith. See Pulley v. Milberger, 198 S.W.3d 418, 428 (Tex. App.—Dallas 2006, pet. denied) (“To

defeat the presumption of bad faith, the landlord must prove his good faith, i.e., honesty in fact in

the conduct or transaction concerned.”); see also Tex. Prop. Code § 92.109(c) (placing burden on

landlord to prove that retention of any portion of security deposit was reasonable).

               Texan Pearl offered evidence that it provided a list of charges, which included carpet

cleaning and replacement, painting, and maid services, that exceeded the amount of the security

deposits and were for damages beyond normal wear and tear. See Tex. Prop. Code § 92.104(a), (b);

see also id. § 92.001(4) (defining “normal wear and tear”). Texan Pearl’s evidence included Matt

Ely’s testimony, the accountings, and photographs of the apartment. The county court, however,

could have found Matt Ely’s testimony not credible. See City of Keller, 168 S.W.3d at 819 (noting

fact finder is sole judge of credibility of witnesses and weight given to their testimony). Among

other evidence, when asked by the court why Texan Pearl did not timely send its list of deductions

to the security deposits, Matt Ely answered, “Good question” and that he was “afraid [he did]n’t”

have a good answer. The county court also could have found that the charges on the accountings

were unnecessary or for matters of “normal wear and tear.” See Tex. Prop. Code § 92.001(4).

               Based on our review of the evidence, we conclude that the county court’s conclusion

that Texan Pearl retained the security deposits in bad faith is supported by the evidence. See BMC

Software Belg., 83 S.W.3d at 794; see also City of Keller, 168 S.W.3d at 807. We overrule Texan

Pearl’s second issue.



                                                 11
Damages for Conversion

               In its third issue, Texan Pearl contends that the county court erred in awarding

damages to Victoria for the loss of personal property under the tort of conversion. See Waisath

v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971) (defining tort of conversion); Wise v. SR

Dallas, LLC, 436 S.W.3d 402, 412 (Tex. App.—Dallas 2014, no pet.) (listing elements of

conversion). Texan Pearl argues that “the evidence conclusively established that [Victoria]

abandoned the personal property by leaving it in the apartment past the move-out date,” and that the

lease gave Texan Pearl the right to “remove any property in the apartment” at that point. It was

undisputed, however, that Victoria had paid rent through the end of January, and the evidence

included photographs of the personal property in a closet at the Texan Pearl apartment, Victoria’s

itemized list of that property, and Victoria’s testimony concerning the value of that property. Matt

Ely also admitted that Victoria had the right to continue using the Texan Pearl apartment until the

end of January and that the cleaning crew “got rid of” things that they found in the apartment prior

to the end of January. The court could have credited this evidence to conclude that Texan Pearl

converted Victoria’s property. See Waisath, 474 S.W.2d at 447; Wise, 436 S.W.3d at 412. We

overrule Texan Pearl’s third issue.


                                         CONCLUSION

               Having overruled Texan Pearl’s issues, we affirm the county court’s judgment.




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                                           __________________________________________
                                           Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: October 14, 2015




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