United States Court of Appeals

for the Fifth Circuit

No. 19-20530

Brooke Adams; Weston Piper, 

Plaintiffs—Appellees,

versus

Fan Chen; Ruikun Tao Tao, 

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-3948

Before Stewart, Dennis, and Haynes, Circuit Judges.

PER CURIAM:*

Brooke Adams and Weston Piper (“tenants”) were evicted from their 

rented townhome and sued Fan Chen and Riukun Tao (“landlords”) for 

retaliation under Texas law and for housing discrimination under the federal 

Fair Housing Act (“FHA”). After the tenants voluntarily dismissed their 

claims, the district court held a two-day bench-trial on the landlords’ 

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion 

should not be published and is not precedent except under the limited circumstances set 

forth in 5TH CIRCUIT RULE 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 8, 2020

Lyle W. Cayce

Clerk

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counterclaim against the tenants for breach of the lease agreement and ruled 

in favor of the tenants. For the following reasons, we VACATE and 

REMAND. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In February 2017, Brooke Adams and Weston Piper leased and moved 

into a townhouse that was owned by the appellants, Fan Chen and Ruikun 

Tao. The lease term was for twelve months. Along with paying the security

deposit for themselves, the tenants also paid a $250 deposit for their pet dog. 

In relevant part, Section 9 of the Lease Agreement (“lease”), entitled 

“PETS,” states, “[u]nless the parties agree otherwise in writing, Tenant 

may not permit, even temporarily, any pet on the Property (including but not 

limited to any mammal, reptile, bird, fish, rodent, or insect).” That section 

further states: “If Tenant violates this Paragraph 9 or any agreement to keep 

a pet on the property, Landlord may take all or any of the following action

[sic]: (1) declare Tenant to be in default of this lease and exercise landlord’s 

remedies under Paragraph 27.” Paragraph 27 states, in relevant part: “If 

Tenant . . . fails to comply with this lease, Tenant will be in default and: (1) 

Landlord may terminate Tenant’s right to occupy the Property by providing 

Tenant with at least one day written notice to vacate.” 

On December 4, 2017, the couple brought a second dog, Waffles, into 

the townhome. Adams registered Waffles as an emotional support animal 

(“ESA”) the same day. The next day, the landlordsfound out about Waffles 

and contacted the tenants via text message to inquire about the second dog. 

The landlords referred the tenants back to the relevant provisions in the 

“mutually agreed and signed lease” to let them know that the lease had been 

violated, and they urged the tenants to carefully read the lease to decide how 

to handle the violation. The text conversation turned sour rather quickly. In 

her response, Adams stated, “But either way be prepared to tell me who 

came to you about us because that makes me not comfortable in my home. 

My birthday was yesterday and that’s when the dog came. He was my gift . . 

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. Either way it will get resolved and nothing was intentional.” On this same 

day, Adams reached out to her friend who is a nurse, Crystal Janke, to have 

her write a note saying that she was prescribed an emotional support animal. 

On December 6, 2017, Adams texted the landlords pictures of Waffle’s ESA 

registration certificate. In that text thread, she explained that she had been 

speaking to someone about adjusting her medication for her postpartum 

depression and anxiety diagnoses and that, as a former real estate agent, she 

understood her rights under the FHA. 

On December 7, 2017, the landlords placed a notice to vacate sign on 

the door of the townhome informing the tenants that they had one day to 

vacate the premises. The tenants refused. During this time, Adams provided

the landlords a signed letter from Janke explaining that Adams was prescribed 

an ESA. A few weeks later, on or around December 20, 2017, Chen posted 

another eviction notice on the door of the townhouse and then initiated an 

eviction action against the tenants on December 22, 2017. The tenants

moved out of the townhome on December 31, 2017. A few weeks later, in 

January 2018, Chen filed a second eviction lawsuit that was dismissed as 

moot because the tenants had already moved out of the home. Shortly after 

this, Tao began threatening Adams’s business associates with legal action for 

photographs that were taken at the townhouse. 

B. Procedural History

The tenants filed suit in Texas state court a month after vacating the 

townhouse alleging that Chen failed to return their security deposit and 

withheld it in bad faith. Chen answered with defenses and counterclaims, 

among them an allegation that the tenants breached Sections 9, 12D, and 14 

of the lease. During the course of these proceedings, (a) Tao filed a complaint 

in April 2018 with Child Protective Services claiming that Adams sexually 

abused her one-year-old son, sold sex for profit, and other unbecoming acts; 

(b) Tao also filed a complaint with the Texas Medical Board against Janke,

which coincidentally resolved when, in concert with the landlords’ lawyers, 

Janke submitted a sworn affidavit retracting the statements in the letter that 

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she wrote on Adams’s behalf; and (c) Tao found and contacted the tenants’ 

new landlord and told him that she and her husband evicted the couple from 

their townhome and were engaged in ongoing litigation with them. 

The tenants amended their suit to add Tao as a defendant and included 

claims for intentional infliction of emotional distress, harassment, and an 

allegation that Tao violated the FHA in engaging in such conduct. The 

landlords then removed the case to federal court pursuant to 28 U.S.C. § 

1441(a) and asserted an additional counterclaim of malicious prosecution. 

The district court issued a management order requiring the parties to confer 

with each other to try to reach a settlement. As agreed to by the parties, the 

tenants subsequently voluntarily withdrew their claims, including their FHA

claim, against the landlords. However, they maintained their defenses 

(retaliation, prior material breach, and estoppel/laches) and affirmative 

defenses (failure to mitigate damages) against the landlords’ counterclaims.

After a two-day bench trial, the district court ruled in favor of the tenants, 

finding that they did not breach the lease but that the landlords breached it. 

Additionally, the district court awarded the tenants $45,627.69 in attorney’s 

fees and the return of their security deposit. At the end of the second day of 

trial, the district court orally issued a permanent injunction against the 

landlords to enjoin them from contacting the tenants, their employers, and 

anyone associated with them. The landlords timely appealed. 

II. STANDARD OF REVIEW

Following a bench trial, appellate courts review legal issues de novo 

and findings of fact for clear error. See Guzman v. Hacienda Records and 

Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (quotations 

omitted). A finding is clearly erroneous when the reviewing court, on the 

whole of the evidence, is left with the definite and firm conviction that a 

mistake has been committed though there may be evidence to support the 

district court’s finding. Id. (quotations omitted). However, “great 

deference” is owed to the district court’s findings; when “there are two 

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permissible views of the evidence, the factfinder’s choice between them 

cannot be clearly erroneous.” Id. (quoting In re Luhr Bros., Inc., 157 F.3d 333, 

338 (5th Cir. 1998)). 

When factual findings are based on credibility determinations, “Rule 

52(a) demands even greater deference to the trial court’s findings; for only 

the trial judge can be aware of the variations in demeanor and tone of voice 

that bear so heavily on the listener’s understanding of and belief in what is 

said.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). This 

deference does not insulate the district court’s findings from review merely 

because the district court calls them “credibility determinations.” Id.

“Documents or objective evidence may contradict the witness’ story; or the 

story itself may be so internally inconsistent or implausible on its face that a 

reasonable factfinder would not credit it.” Id. In the face of such factors, “the 

court of appeals may well find clear error even in a finding purportedly based 

on a credibility determination.” Id. But, if the finding is based on the court’s 

decision to credit one of two or more witnesses that have all told “coherent 

and facially plausible stor[ies] that [are] not contradicted by extrinsic 

evidence,” that finding can virtually never be clear error. Id.

III. DISCUSSION

A. Jurisdiction

“A district court has ‘wide discretion’ in deciding whether it should 

retain jurisdiction over state law claims once all federal claims have been 

eliminated.” Enochs v. Lampasas Cty., 641 F.3d 155, 161 (5th Cir. 2011) 

(quoting Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999)). At bottom, 

this is a straightforward landlord-tenant dispute. The case was removed to 

federal court prior to the tenants’ voluntary dismissal of their claims. Despite 

the voluntary dismissal, the district court decided not to remand this case 

back to the state trial court. Thus, we retain jurisdiction over the matter.

B. The district court incorrectly found that the tenants did not breach 

the lease agreement.

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The landlords argue that the tenants did not properly exercise their 

rights under the FHA because the tenants presented the ESA documents 

after they had already been caught with Waffles in the home without the 

landlords’ express written permission. Accordingly, they argue that the 

tenants violated Section 9 of the lease agreement. The tenants counter that 

they did not breach the lease agreement because they exercised their rights 

under the FHA to bring Waffles into the home as an emotional service 

animal. An action for a breach of lease requires a plaintiff to show (1) the 

existence of a valid lease agreement, (2) that the plaintiff performed or 

tendered performance, (3) that the defendant breached an obligation under 

the lease, and (4) damages that resulted from the breach. See Dupree v. Boniuk 

Interests, Ltd., 472 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2015, no 

pet.). We agree with the landlords that they conclusively proved that the 

tenants breached the lease. 

Regarding the first two prongs, the validity of the lease and the 

landlords’ performance of the lease, i.e., the tenants’ possession of the 

townhome for ten months, are undisputed. As for the third prong, it is clear 

from the record and from the district court’s own findings that the tenants

breached Section 9 of the lease because Waffles was brought into the home 

prior to receiving express written permission from the landlords. As for the 

final prong, the landlords assert that this requirement is satisfied in the form 

of their loss of unauthorized pet rent, unpaid rent, and the re-letting fee paid 

to the leasing agent. While the extent of these damages may be disputed, 

there is no doubt that the tenants breached the lease. Likewise, we need not 

decide whether there were other violations of other lease provisions. Now, 

we must decide whether the tenants’ breach was excusable.

Section 92.331(a)(1) of the Texas Property Code prohibits a landlord 

from taking certain specified retaliatory actions against a tenant “because the 

tenant in good faith exercises or attempts to exercise against a landlord a right 

. . . granted to the tenant by . . . federal or state statute.” In relevant part, 

subsection (b) specifies such prohibited retaliatory conduct such as “(1) filing 

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an eviction proceeding . . .; (2) depriving the tenant of the use of the premises, 

except for reasons authorized by law; . . . (4). . . terminating the tenant’s 

lease; or (5) engaging, in bad faith, in a course of conduct that materially 

interferes with the tenant’s rights under the tenant’s lease.” TEX. PROP.

CODE § 92.331(b)(1)–(2), (4)– (5). Retaliation by a landlord can be asserted 

as a defense in an eviction suit. Id. at § 92.335. 

Notwithstanding that this is not an eviction suit, we determine that 

the retaliation defense is inapplicable here because we are not convinced that 

the tenants made a good faith attempt to exercise their rights under the FHA. 

See Id. at § 92.331(a)(1). The record shows that Adams did not text Tao 

pictures of Waffles’ ESA certification until two days after she brought 

Waffles into the home. Additionally, the prerequisite actions requested by 

the landlords in order for the tenants to have an additional pet in the home 

was not a blanket prohibition such that a reasonable accommodation under 

the FHA was compulsory. See Chavez v. Aber, 122 F. Supp. 3d 581, 593–97 

(W.D. Tex. 2015) (finding that the plaintiffs’ requested accommodation to 

have the blanket “no pets policy” waived for her emotional service dog was 

reasonable under the FHA). The landlords only required their prior express 

written permission to have an additional pet in the home—the tenants did 

not have that permission. 

Regarding the landlords’ post-eviction conduct, the landlords argue 

that those actions (i.e., contacting Child Protective Services, contacting the 

tenants’ subsequent landlord, etc.) do not touch on Adams’s and Piper’s 

rights under the Lease. We decline to opine whether other claims are 

available. For the purposes of this appeal, these actionssimply do not provide 

the tenants with a defense to the landlords’ claim that they breached the 

terms of the lease.

In sum, we vacate the district court’s finding in favor of the tenants

on the breach of lease claim. Accordingly, we vacate the permanent 

injunction issued against the landlords. We remand for the district court to 

determine in the first instance whether Landlords have demonstrated

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damages sufficient to make out a claim for breach of lease and the amount of 

damages that should be awarded. See Dupree, 472 S.W.3d at 364 (requiring 

plaintiff to prove “damages that resulted from the breach” to succeed on a 

breach-of-lease claim); see also Great Am. Ins. Co. v. AFS/IBEX Fin. Servs., 

Inc., 612 F.3d 800, 808 (5th Cir. 2010) (remanding to the district court to 

reconsider in the first instance issue that it “never opined on the merits of”). 

The record shows that at the trial level, the tenants pled as an affirmative 

defense that the landlords failed to mitigate damages. See McGraw v. Brown 

Realty Co., 195 S.W.3d 271, 277–78 (Tex. App. 2006) (citing Austin Hill 

Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997)). 

The tenants’ evidence of the landlords’ failure to mitigate must show the 

amount by which the landlord could have reduced his damages. Id. at 277. 

Accordingly, on remand, the district court should also determine whether the 

landlords sufficiently mitigated their damages incurred by the tenants’ 

breach. 

C. The district court improperly found that the landlords violated the 

Fair Housing Act.

The district court’s finding that the landlords violated the federal 

FHA is immaterial to whether the tenants breached the lease. In turn, we 

vacate. The record clearly shows that the tenants’ FHA claim was voluntarily 

dismissed shortly after the case was removed to federal court. Because the 

FHA claim was not before the court, we vacate. 

IV. CONCLUSION

For the foregoing reasons, we VACATE the district court’s 

judgment and REMAND for reconsideration of the issue of the landlords’ 

mitigation of damages and attorney’s fees, consistent with this opinion. 

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