Opinion issued April 30, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00094-CV
                           ———————————
                       BYRON ROBINSON, Appellant
                                       V.
                      ELIZABETH SHELTON, Appellee


            On Appeal from the County Civil Court at Law No. 1
                          Harris County, Texas
                      Trial Court Case No. 1039938




                         MEMORANDUM OPINION

      In this eviction case, Byron Robinson appeals a county court’s order that he

had no right to continue to occupy a duplex that he had leased from his landlord,

Elizabeth Shelton. On appeal, Robinson contends that the evidence is insufficient
to establish either that Shelton had a superior right of possession or that she failed

to give him proper notice to vacate the premises. Finding no error, we affirm.

                                    Background

      In November 2012, Robinson entered into a residential lease of the lower

level of a duplex in Houston. The lease term expired in October 2014 and required

$800 monthly in rent. Under the agreement, Shelton could terminate the lease if

the tenant failed to pay all amounts due, provided that she gave notice to Robinson

to vacate the leased premises.

      The landlord-tenant relationship was a rocky one almost from the outset,

with disputes about repairs and Shelton’s access to the leased premises. After

Robinson did not pay rent in September and October 2013, Shelton sued him in

justice court, seeking to evict him from the premises. In November 2013, the

justice court ruled for Shelton.

      Robinson appealed the justice court’s ruling to the county court at law.

There, Robinson did not contest that he had failed to pay rent in October 2013, but

denied Shelton’s non-payment claim for September 2013.            The county court

rendered judgment in favor of Shelton, awarding damages of $800.




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                                    Discussion

      Robinson challenges the evidentiary sufficiency of the trial court’s implied

findings that he breached the leased agreement and that he received proper notice

to vacate the leased premises.

      Standard of Review

      In an appeal from a bench trial, we review a trial court’s findings of fact

under the same legal and factual sufficiency of the evidence standards used when

determining if sufficient evidence exists to support an answer to a jury question.

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a trial court issues

no findings of fact, we imply that the trial court made all the necessary findings to

support its judgment. Douglas v. Petroleum Wholesale, Inc., 190 S.W.3d 97, 99

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Roberson v. Robinson, 768

S.W.2d 280, 281 (Tex. 1989)).       The trial court judges the credibility of the

witnesses, determines the weight of testimony, and resolves conflicts and

inconsistencies in the testimony. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488,

493 (Tex. App.—Houston [1st Dist.] 1992, writ denied). If the evidence falls

“within the zone of reasonable disagreement,” we will not substitute our judgment

for that of the fact finder. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005).




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      In determining whether legally sufficient evidence supports the finding

under review, we consider evidence favorable to the finding, if a reasonable fact

finder could consider it, and disregard evidence contrary to the finding, unless a

reasonable fact finder could not disregard it. Id. at 827. In a factual sufficiency

review, we view all of the evidence in a neutral light and set aside the finding only

if the finding is so contrary to the overwhelming weight of the evidence such that it

is clearly wrong and unjust. Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442,

445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

      We review a trial court’s construction of an unambiguous contract de novo.

MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex.

1999). Contract terms will be given their plain, ordinary, and generally accepted

meanings, unless the contract indicates a technical or different sense. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005).

      A. Breach of the Lease Agreement

      Robinson challenges the legal and factual sufficiency of the evidence

supporting the county court’s judgment that Shelton had a superior right of

possession of the leased property. Their agreement provided that, if Robinson

failed to pay any amount due under the lease, then Shelton could terminate his

right to occupy the leased property upon providing a notice to vacate. Shelton

presented evidence that Robinson did not pay rent in October 2013, and Robinson



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did not contest that non-payment. Robinson instead pleaded an affirmative defense

that Shelton had breached the lease through wrongful eviction, and contested

whether the notice to vacate the premises was proper. He did not, however, adduce

evidence at trial that a wrongful eviction had occurred or that Shelton’s conduct

had released him from his obligation to pay rent under the lease. Because a

reasonable fact finder could credit the evidence presented supporting a finding of

non-payment of rent, we hold that legally sufficient evidence supports the court’s

ruling. See Keller, 168 S.W.3d at 827; Valence, 164 S.W.3d at 662.

      In reviewing the factual sufficiency of the evidence, we consider whether the

trial court’s finding was against the great weight and preponderance of the

evidence. See Plas–Tex, 772 S.W.2d at 445. The lease provided that Shelton

could terminate Robinson’s right to occupy the leased property if Robinson did not

make timely payments under the lease.         Robinson did not contest Shelton’s

testimony that he had not paid rent for the month of October 2013 and did not

adduce evidence supporting his affirmative defense. We hold that the evidence

supporting the county court’s finding was factually sufficient. See id.

      B. Notice to Vacate the Leased Premises

      Robinson challenges whether Shelton sufficiently proved that he received

proper notice to vacate the premises. Pursuant to the Texas Property Code, a

person entitled to possession of a property “must comply with the requirements for



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notice to vacate under Section 24.005.” TEX. PROP. CODE ANN. § 24.002(b) (West

2013). Section 24.005 provides, “If the occupant is a tenant under a written

lease . . . the landlord must give a tenant who defaults . . . at least three days’

written notice to vacate the premises before the landlord files a forcible detainer

suit, unless the parties have contracted for a shorter . . . period in a written

lease . . . .” Id. § 24.005(a). A notice to vacate “shall be given in person or by

mail at the premises.” Id. § 24.005(f). If notice is given in person, a landlord may

deliver it “by personal delivery to the tenant or . . . to the premises and affix[] the

notice to the inside of the main entry door.” Id.

      In the trial at the county court, Shelton identified a copy of her notice to

Robinson to vacate the premises. She further testified that she paid to have the

notice served on Robinson. The court admitted the copy into evidence, overruling

Robinson’s hearsay objection. The notice was addressed to Robinson, and it was

signed by a person who purported to have served the notice by affixing it on the

door of the leased premises. At trial, Shelton also authenticated a receipt, showing

payment for service of the notice, and the court admitted the receipt into evidence.

Robinson did not object to its admission. On appeal, Robinson he does not raise

any argument regarding the admissibility of the notice other than to state that the

county court abused its discretion in admitting it. Without argument or citation to

authority, any admissibility argument is waived. See TEX. R. APP. P. 38.1(i) (“The



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brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”). Shelton’s testimony that

she served a notice, together with the notice itself and the receipt, are some

evidence from which a factfinder could reasonably conclude that Robinson

received a notice to vacate the premises on his duplex entry door. Thus, we hold

that legally sufficient evidence supports the court’s finding.    See Keller, 168

S.W.3d at 827. Similarly, because Robinson adduced no evidence to the contrary,

we hold that the evidence is factually sufficient. See Plas–Tex, 772 S.W.2d at 445.

                                   Conclusion

      We affirm the judgment of the county court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.




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