                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00167-CV


                           STEVEN L. DRYZER, APPELLANT

                                            V.

             CHARLES BUNDREN AND KAREN BUNDREN, APPELLEES

                           On Appeal from the 393rd District Court
                                   Denton County, Texas
          Trial Court No. 2007-60118-393, Honorable Douglas M. Robison, Presiding

                                      May 6, 2014

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellees and cross-appellants, Charles Bundren and wife Karen Bundren, sued

their former landlord, appellant and cross-appellee Steven Dryzer, for retaining their

security deposit. Trial was by jury and on a verdict favorable to the Bundrens the court

rendered judgment.     Dryzer appeals, asserting reversible charge error.       By cross-

appeal, the Bundrens seek additional attorney’s fees. Finding the trial court erred and

the error was not harmless we will reverse the judgment, dismiss as moot the Bundrens'

cross-appeal, and remand the cause to the trial court for a new trial.
                                      Background


        Charles Bundren and Steven Dryzer are practicing attorneys. In August 2002,

the Bundrens leased a house in Frisco, Texas, from Dryzer. As required by the parties’

lease agreement, the Bundrens posted a $15,000 security deposit with Dryzer.

Thereafter, the Bundrens and their children occupied the dwelling as their residence.


        Acrimony soon developed between the Bundrens and Dryzer over issues relating

to the condition of the house. When the Bundrens vacated the property on March 31,

2005, Dryzer did not refund their security deposit. Rather, in a letter dated April 27,

2005, he provided them a written itemization of deductions from the security deposit.

According to Dryzer, the amount necessary to remedy damages caused by the

Bundrens, beyond normal wear and tear, exceeded the amount of the security deposit

by over two thousand dollars. Dryzer demanded payment of the excess sum within ten

days.


        The Bundrens did not pay the monies demanded. Instead, appearing for himself

and his wife, Mr. Bundren filed suit against Dryzer in 2007. The Bundrens alleged

Dryzer breached the terms of the lease agreement by retaining their security deposit.

They further alleged his retention of the security deposit was in bad faith, violating

Texas Property Code § 92.109(a).1 As allowed by § 92.109(a), the Bundrens sought




        1
         The statute provides, “A landlord who in bad faith retains a security deposit in
violation of this subchapter is liable for an amount equal to the sum of $100, three times
the portion of the deposit wrongfully withheld, and the tenant’s reasonable attorney’s
fees in a suit to recover the deposit.” TEX. PROP. CODE ANN. § 92.109(a) (West 2007).


                                            2
recovery from Dryzer of three times the amount of the security deposit, plus $100, and

attorney’s fees.


       The case was tried by jury during June 2011. By that time the Bundrens had

engaged an attorney.      Dryzer was also represented by counsel.          The evidence

portrayed the sharp disagreements and wrangling between the Bundrens and Dryzer

over the residence. During trial, in conferences outside the presence of the jury, the

court and the attorneys worked on the jury charge. Among the subjects they discussed

was the operation of the bad faith presumption authorized under specified facts by

Property Code § 92.109(d).2


       The case was submitted to the jury on broad form questions.           Two liability

questions supported with instructions inquired whether Dryzer retained the Bundrens’

security deposit in bad faith and whether he breached the parties’ lease agreement by

failing to refund a portion of the deposit. The jury answered both liability questions

affirmatively. It awarded the Bundrens $14,115 on the bad faith statutory cause of

action and an additional $14,115 under the common law breach of lease claim.

Concerning attorney’s fees, the jury awarded the Bundrens $12,000 for their attorney’s

trial representation but nothing for Mr. Bundrens’ self-representation. It also awarded

nothing for an appeal to a court of appeals and nothing for a petition for review before

the Supreme Court of Texas. The trial court granted in part the Bundrens’ post-trial


       2
         “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.” TEX. PROP. CODE
ANN. § 92.109(d) (West 2007).



                                            3
motion to disregard certain jury findings and awarded conditional appellate fees of

$7,500 if appealed to a court of appeals and a like sum for a petition for review. The

trial court did not disturb the jury’s failure to award any attorney’s fees for Mr. Bundrens’

self-representation in the trial court.


       The final judgment was signed in January 2012.           It awarded the Bundrens

$42,4453 on their statutory bad faith cause of action, $14,115 for their breach of lease

claim, $12,000 as attorney’s fees for their attorney’s trial representation, $7,500 as

attorney’s fees conditioned on prevailing in the court of appeals, $7,500 as attorney’s

fees for prevailing on a petition for review in the supreme court, pre-judgment and post-

judgment interest, and costs of court. Dryzer’s motion for new trial was apparently

overruled by operation of law and this appeal followed.


                                          Analysis


       Dryzer argues, inter alia, the trial court wrongly instructed the jury on the

statutory presumption of bad faith because the evidence did not support its inclusion.

Specifically, he asserts on appeal, as in the trial court, the presumption did not arise

because he sent the Bundrens a letter describing and itemizing deductions before the

thirtieth day after the date they surrendered possession of the residence.


       We first consider preservation of the claimed error. The Bundrens argue Dryzer

did not specifically object to the complained-of instruction and therefore waived any

complaint on appeal. The record demonstrates Dryzer timely and plainly made the trial
       3
        That is, three times the jury finding of $14,115 plus $100 as required by §
92.109(a).



                                             4
court aware of his complaint, that is, the statutory presumption did not arise because he

sent the Bundrens a letter describing and itemizing deductions before the thirtieth day

after the date the Bundrens surrendered possession of the residence. While the record

may not reflect an express ruling by the trial court on Dryzer’s presumption complaint

the charge actually submitted instructed the jury, “You are further advised that a

landlord who fails to return a security deposit on or before the 30th day after the date

the tenant surrenders possession is presumed to have acted in bad faith.” The trial

court’s decision to leave the presumption instruction in the charge establishes that

Dryzer’s complaint was at least implicitly overruled. TEX. R. APP. P. 33.1(a)(2)(A); see

State v. Colonia Tepeyac, Ltd., 391 S.W.3d 563, 568 (Tex. App.—Dallas 2012, no pet.)

(concluding in condemnation case that while the trial court did not expressly overrule

the State’s objection it did so implicitly by failing to change the jury charge at the

conclusion of the charge conference that included a lengthy discussion of the State’s

objection). Given the discussion of Dryzer’s complaint by the court and counsel, the

inclusion of the presumption instruction in the charge was surely no oversight. See

State Department of Highways and Public Transportation v. Payne, 838 S.W.2d 235,

239 (Tex. 1992). Dryzer sufficiently preserved his complaint as to the charge on the

presumption of bad faith.


       As noted, Property Code § 92.109(d) provides, “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.” As the Dallas Court of Appeals has paraphrased it, “[b]ad

faith is presumed when a landlord fails to: (1) return the security deposit; or (2) provide


                                            5
a written description of the damages and an itemized list of all deductions within thirty

days after the tenant surrenders the premises.” Pulley v. Milberger, 198 S.W.3d 418,

428 (Tex. App.—Dallas 2006, pet. denied).


       Among its general instructions the trial court charged the jury:


       Bad faith implies deliberate intention to deprive the tenant of a lawfully due
       refund. You are further advised that a landlord who fails to return a
       security deposit on or before the 30th day after the date the tenant
       surrenders possession is presumed to have acted in bad faith. The
       landlord has the burden of proving by a preponderance of the evidence
       that the retention of any portion of the security deposit was reasonable.
       The landlord may rebut the presumption of bad faith by proving by a
       preponderance of the evidence his honesty in fact in his conduct in
       retaining the security deposit, or portions of the deposit.


       Rule 277 of the Texas Rules of Civil Procedure states:

       In all jury cases the court shall, whenever feasible, submit the cause upon
       broad-form questions. The court shall submit such instructions and
       definitions as shall be proper to enable the jury to render a verdict.
       ...
       The court shall not in its charge comment directly on the weight of the
       evidence or advise the jury of the effect of their answers, but the court’s
       charge shall not be objectionable on the ground that it incidentally
       constitutes a comment on the weight of the evidence or advises the jury of
       the effect of their answers when it is properly a part of an instruction or
       definition.
TEX. R. CIV. P. 277. A jury instruction is proper if it: (1) assists the jury; (2) accurately

states the applicable law; and (3) finds support in the pleadings and evidence.

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855-56 (Tex. 2009).

Rule 277 affords the trial court considerable discretion in selecting necessary and

proper instructions. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451-52 (Tex. 1997);




                                             6
GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, 268 S.W.3d 822, 836 (Tex.

App.—Fort Worth 2008, no pet.).


      We review for abuse of discretion a trial court’s decision to submit an instruction.

Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam).          A trial court

abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any

guiding principles. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 469-70 (Tex.

App.—San Antonio 1998, pet. denied). This includes failing to analyze or apply the law

correctly. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). The Supreme

Court of Texas explained over a century ago when considering alleged charge error,

“[w]e must look at the court’s charge as practical experience teaches that a jury,

untrained in the law, would view it.” Galveston, H. & S.A. Ry. Co. v. Washington, 94

Tex. 510, 63 S.W. 534, 538 (1901).


      Reversal for charge error is not required if the error did not cause the rendition of

an improper judgment. TEX. R. APP. P. 44.1(a) (“No judgment may be reversed on

appeal on the ground that the trial court made an error of law unless the court of

appeals concludes that the error complained of . . . probably caused the rendition of an

improper judgment”); Star Enterprise v. Marze, 61 S.W.3d 449, 456 (Tex. App.—San

Antonia 2001, pet denied).     We review the entire record to determine whether the

submission or refusal to submit an instruction probably resulted in an improper

judgment. Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.

1998). An error in the charge relating to a contested critical issue is generally harmful.

Columbia Rio Grande Healthcare, 284 S.W.3d at 856. Further, an erroneous instruction

presents harmful error if the reviewing court is unable to determine whether the jury

                                            7
based its verdict on an invalid theory. United Enters. v. Erick Racing Enters., No. 07-

01-0467-CV, 2002 Tex. App. Lexis 9271, at *19 (Tex. App.—Amarillo Dec. 31, 2002,

pet. denied) (not designated for publication) (citing Crown Life Ins. Co v. Casteel, 22

S.W.3d 378, 388-89 (Tex. 2000)).


       Because it was undisputed that Dryzer had timely satisfied the written description

and itemization requirement, we agree with Dryzer that the bad faith presumption had

no place in the case under the evidence presented and the jury should not have been

instructed regarding the presumption. Moreover, the instruction given the jury regarding

the presumption was not an accurate statement of the applicable law because it told the

jury that Dryzer would be presumed to have acted in bad faith merely by evidence that

he failed to return the deposit within thirty days of surrender of the premises. The

instruction ignored the provision of § 92.109(d) for a written description and itemization.

By so instructing the jury the trial court abused its discretion.


       Looking then to harm, reversible error may result from the inclusion in the charge

of unnecessary jury instructions focusing the jury’s attention on issues not belonging in

the case. Middleton, 982 S.W.2d at 471 (citing Lemos v. Montez, 680 S.W.2d 798, 799

(Tex. 1984)). The error is harmful because “the court’s instructions become the law of

the case and are to be accepted by the jury as the guide on which they must rely.”

Middleton, 982 S.W.2d at 471 (citing Texas Power & Light Co. v. Lovinggood, 389

S.W.2d 712, 717 (Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.)).          The erroneous

inclusion of the presumption instruction in the charge meant Dryzer not only had to

establish his reasonableness in withholding the deposit, but he was compelled also to

prove his honesty in fact. In the end, more likely than not, the jury of lay people based

                                               8
its finding that Dryzer acted in bad faith on the perceived weight of an instruction that

effectively informed them the trial court presumed Dryzer retained the Bundrens’

security deposit in bad faith because it was not refunded within thirty days. 4 On this

sharply disputed issue, we conclude the trial court’s error was harmful.


       The harm from the erroneous bad faith instruction did not end with the jury’s

consideration of the first liability question. The second liability question asked if Dryzer

breached the lease by failing to refund any portion of the security deposit. According to

the bad faith instruction, the jury was to presume Dryzer’s bad faith because he did not

return the security deposit within thirty days. This tied to another general instruction

charging the jury “bad faith implies a deliberate intention to deprive the tenant of a

lawfully due refund.”    The Bundrens’ attorney argued Dryzer breached the lease

because he did not refund the security deposit within thirty days. Buttressed by this

argument, the jury considered the breach of lease question directed by an erroneous

presumption that unless rebutted the Bundrens were “lawfully due” a refund of their

security deposit.   We find more likely than not the erroneous instruction led to an

improper affirmative finding on the breach of lease question. See King v. Skelly, 452

S.W.2d 691, 696 (Tex. 1970) (explaining under harmless error review the standard is

not “but for”; rather, the determination of whether in reasonable probability the error

resulted in an improper verdict is a matter the appellate court’s judgment in light of the

       4
          And the argument of the Bundrens’ attorney reinforced the erroneous
instruction when he told the jury:

       And the Judge makes it clear as to who has the burden of proof in this
       case because it says in the Charge that he read to you that the landlord’s
       presumed to have acted in bad faith if he keeps my client’s money. The
       burden of proof is on the landlord to show that any retention of any part of
       that security deposit was reasonable.

                                             9
entire record); W. Wendell Hall et al., Hall’s Standards of Review in Texas, 42 St.

Mary’s L. J. 3, 247 (2010) (test for reversible error is one of probability and not “but for”);

see also Ponder v. Texarkana Memorial Hosp., Inc., 840 S.W.2d 476, 479 (Tex. App.—

Houston [14th Dist.] 1991, writ denied) (explaining whether a particular error was

calculated to cause and probably did cause the rendition of an improper judgment is

necessarily a judgment call entrusted to the sound discretion and good sense of the

reviewing court made from an evaluation of the whole case).


       Because we reverse the affirmative findings on the two liability questions, it is

axiomatic there can be no stand-alone recovery of damages. See Mitchell v. Bank of

Am., N.A., 156 S.W.3d 622, 627 (Tex. App.—Dallas 2004, pet. denied) (“It is well

established in Texas that no recovery is allowed unless liability has been established.

In the absence of liability, the question of damages becomes immaterial”). Moreover,

the trial court conditioned an award of attorney’s fees on the recovery of an amount of

money by the Bundrens. Since the trial court’s monetary awards are reversed, there

can be no corresponding award of attorney’s fees and the Bundrens’ cross-appeal

complaining of the dollar amounts of attorney’s fees is dismissed as moot.


                                         Conclusion


       Finding error and that it was not harmless, we reverse the judgment of the trial

court, dismiss the cross-appeal of the Bundrens as moot, and remand the cause to the

trial court for a new trial.


                                                   James T. Campbell
                                                       Justice



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