Slack v. Consulate of Greece

TOMMY L. SLACK AND ALISA SLACK, Appellants v. THE CONSULATE OF GREECE, Appellee

NO. 14-18-00469-CV

State of Texas in the Fourteenth Court of Appeals

June 30, 2020

On Appeal from the County Civil Court at Law No. 4 Harris County, Texas

Trial Court Cause No. 1044448

MEMORANDUM OPINION

In this landlord/tenant dispute, two landlords appeal the trial court's grant of the tenant's summary-judgment motions. The trial court ordered that (1) the landlords take nothing by their counterclaims for breach of the lease and conversion, and (2) the tenant recover as a matter of law on its claims for breach of the lease and bad-faith retention of the security deposit under section 92.109(a) of the Property Code. Concluding that the summary-judgment evidence raised genuine fact issues precluding summary judgment as to the landlords' conversion claim and the tenant's breach-of-lease and section 92.109(a) claims, we reverse and remand as to these claims. Because the landlords have not challenged all of the summary-judgment grounds as to the landlord's counterclaim for breach of the lease, we affirm the trial court's judgment as to this claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants/defendants/counter-plaintiffs Tommy L. Slack and Alisa Slack (collectively the "Slack Parties"), as landlords, and appellee/plaintiff/counter-defendant The Consulate of Greece, as a tenant, entered into a residential lease of real property in Harris County to be used as a residence by the Consul of Greece in Houston (the "Lease"). Alexandra Theodoropoulou signed the Lease both as "Consul of Greece" and on behalf of the "Consulate of Greece." The parties to the Lease define the term "Tenant" to mean both the Consulate and "Alexandra Theodoropoulou, Consul of Greece." The primary term of the Lease ran from March 1, 2010 through February 28, 2013. The Consulate paid a $5,000 security deposit to the Slack Parties. The parties agreed in the Lease that the Slack Parties "may deduct reasonable charges from the security deposit for . . . damages to the Property, excluding normal wear and tear." The parties defined the term "Property" in the Lease to mean the leased real property and "the following non-real-property items: washer, dryer, sub zero refrigerator." The parties also agreed that "[e]xcept as otherwise permitted by law, this lease, or in writing by [the Slack Parties], the Tenant may not . . . remove any part of the Property or any of [the Slack Parties'] personal property from the Property."¹

According to Alisa Slack, the Slack Parties requested access to the leasedproperty to review its condition and make any needed repairs but from May 2011 through October 2011, Theodoropoulou, in violation of the Lease, did not allow the Slack Parties access to the property. In October 2011, the Slack Parties learned that Theodoropoulou and her family had vacated the premises without giving written notice of their intent to vacate, which the Slack Parties assert the Lease required.

George Papanikolaou succeeded Theodoropoulou as the Consul of Greece in Houston. The Slack Parties assert that the Consulate allowed Alisa Slack, accompanied by Robert Van Domselaar, to access the leased property on October 7, 2011, to determine if any repairs or maintenance were needed before Papanikolaou moved into the residence. The Slack Parties hired Van Domselaar to make any needed repairs to the property. According to Alisa Slack, Van Domselaar and Alisa noticed a number of areas where the property had been damaged or otherwise needed repairs, and Van Domselaar pointed out this damage to George Vouzikis, who worked for the Consulate. Van Domselaar testified that this damage was not caused by normal wear and tear. Alisa testified that Vouzikis claimed he did not know about any damage to the property and that Alisa and Van Domselaar showed him the areas that needed repairs and told him about missing items, including a custom-made rug in the entry.

Alisa testified that after the October 7, 2011 inspection, Van Domselaar made a number of repairs to the leased property and that a representative of a different company repaired the motor in the clothes dryer, which the Slack Parties claim was damaged due to improper use.

Alisa testified that on October 15, 2011, she gave Papanikolaou a letter (the "2011 Letter") that the Slack Parties claim included "a written description and itemized list of all deductions from the security deposit for which the tenant wasliable under the [Lease]." The Consulate never paid the Slack Parties any amount based on these alleged damages and missing items. Papanikolaou moved into the leased property in October 2011, and the Consulate continued to pay rent to the Slack Parties. On February 15, 2013, the Consulate gave written notice of termination of the Lease and gave the Slack Parties a written statement of the Consulate's forwarding address for the purpose of refunding the security deposit. The parties agreed to extend the term of the Lease by one month, through March 31, 2013. The Consulate surrendered possession of the leased premises to the Slack Parties on that date.

The Slack Parties never returned any part of the security deposit to the Consulate. They assert that they have incurred more than $5,000 in costs due to damage to the leased premises and missing personal property. The Slack Parties do not assert that the Consulate owes them any rent. The only written description and itemized list of deductions from the security deposit that the Slack Parties claim to have given to the Consulate is the 2011 Letter that Alisa gave to Papanikolaou more than a year before the Consulate surrendered possession of the leased premises.²

The Consulate filed suit against the Slack Parties asserting that the Slack Parties breached the Lease by failing to refund the $5,000 security deposit to the Consulate. Liberally construing the petition, we conclude the Consulate also asserted a claim for bad-faith retention of the security deposit under section 92.109(a) of the Property Code, and the Consulate sought to recover three times the amount of the security deposit. The Slack Parties asserted counterclaimsagainst the Consulate for breach of the Lease and conversion of various items of personal property.

The Consulate filed a motion for summary judgment on its breach-of-contract and section 92.109(a) claims against the Slack Parties and on the Slack Parties' breach-of-contract claim against the Consulate (the "First Motion"). The Slack Parties responded in opposition and submitted summary-judgment evidence. The trial court granted the First Motion and rendered an interlocutory summary judgment in which the court did not dispose of the Slack Parties' conversion claim. The Slack Parties sought to appeal the judgment, but this court dismissed for lack of appellate jurisdiction.

The Consulate then filed a motion for a no-evidence summary judgment as to the Slack Parties' conversion claim (the "Second Motion"). The Slack Parties responded in opposition and submitted summary-judgment evidence. The trial court granted the Second Motion and rendered a final summary judgment in which the court ordered that (1) the Slack Parties take nothing by their counterclaims for breach of the lease and conversion, and (2) the Consulate recover $15,100, plus reasonable and necessary attorney's fees, prejudgment and postjudgment interest, and court costs, on the Consulate's claims for breach of the lease and bad-faith retention of security deposit under section 92.109(a) of the Property Code.

II. ISSUES AND ANALYSIS

On appeal, the Slack Parties assert in three issues that (1) the trial court erred in granting the First Motion as to the Consulate's claims against them because the summary-judgment evidence raises a fact issue on at least one element of each claim; (2) the trial court improperly awarded the Consulate damages under Property Code section 92.109(a) because no basis existed to support a finding of bad faith by the Slack Parties; and (3) the trial court erred in granting summaryjudgment as to the Slack Parties' counterclaims because the summary-judgment evidence raises genuine fact issues as to each claim.

In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

A. Did the 2011 Letter include a written description and itemization of deductions from the security deposit?

On appeal, the Slack Parties argue that the 2011 Letter included a written description and itemized list of the deductions the Slack Parties made from the security deposit for the...