Reverse and Remand and Opinion Filed August 5, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00137-CV

LORRIE FRAZIN, Appellant

V.

MARC SAUTY AND BENEDICTE SAUTY, Appellees

On Appeal from the County Court at Law No. 3

Dallas County, Texas

Trial Court Cause No. CC-11-00258-C

MEMORANDUM OPINION

Before Justices Moseley, Lang, and Brown 

Opinion by Justice Lang

Lorrie Frazin appeals the county court’s final judgment in favor of Marc Sauty and 

Benedicte Sauty, awarding them $6,585 in actual damages in their suit pursuant to section 

92.109(a) of the Texas Property Code against Frazin for failure to return their security deposit. 

In two issues, Frazin contends the county court erred when it granted the Sautys’ motion for 

summary judgment on their claim for failure to return the security deposit because Frazin raised 

issues of material as to whether: (1) Frazin retained the security deposit in violation of chapter 

92, subchapter C of the Texas Property Code; and (2) Frazin rebutted the presumption of bad 

faith. In response, the Sautys argue this Court has no jurisdiction to hear this appeal because 

Frazin failed to timely file and obtain an appeal bond, violating Texas Rules of Civil Procedure 

567 and 571.
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We conclude this Court has jurisdiction over this appeal. Also, we conclude the county

court erred when it granted traditional summary judgment in favor of the Sautys because Frazin 

raised an issue of material fact regarding whether she retained the security deposit in violation of 

chapter 92, subchapter C of the Texas Property Code. The county court’s final judgment is 

reversed and the case is remanded for further proceedings consistent with this memorandum 

opinion. We issue this memorandum opinion because the issues in this appeal are settled. TEX.

R. APP. P. 47.4.

I. PROCEDURAL BACKGROUND

The Sautys filed suit against Frazin in the justice of the peace court alleging a claim for 

“failure to return deposit.” Frazin did not file a counter-claim for damages. When Frazin “failed 

to personally appear [at the trial] or present any evidence of the required notice or itemized 

deductions,” the justice of the peace court rendered a directed verdict in favor of the Sautys, 

awarding damages in the amount of $6,735 and attorneys’ fees in the amount of $1,200.

Frazin sought a de novo appeal of the justice of the peace court’s final judgment in the 

county court. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.001 (West 2008); TEX. R. CIV. P.

506. The parties did not file any new or supplemental pleadings in the county court. The Sautys 

filed a motion for summary judgment on their claim. Also, the Sautys filed a motion to dismiss 

for lack of jurisdiction, claiming the county court did not have jurisdiction to hear the appeal 

because Frazin failed to timely file and obtain an appeal bond, violating Texas Rules of Civil 

Procedure 567 and 571. The county court granted the Sautys’ motion to dismiss for lack of 

jurisdiction. Frazin filed a motion for new trial, which the county court granted. 

In their motion for traditional summary judgment, the Sautys asserted they were entitled 

to judgment as a matter of law because there were no material issues on their claim that Frazin 
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failed to return their security deposit in bad faith.1

 In particular, they claimed Frazin retained the 

security deposit in violation of chapter 92, subchapter C of the Texas Property Code because:

[T]he Lease expired by its own terms on June 31 (which [the Sautys] interpret as 

June 30, the last day of the month) 2009, and [[the Sautys] provided a forwarding 

address on December 24, 2008, and when [the Sautys] relocated (after the date the 

refund was due), on August 18, 2009, [the Sautys] updated the address. At no 

time during the term of the Lease did [Frazin] notify [the Sautys] of any breach of 

the lease. [Frazin] did not send any notice of intent to withhold the deposit until 

August 21, 2009, which was fifty[-]two (52) days after the termination of the 

Lease, and more than thirty (30) days after the date any right to offset was 

permissible under statute.

Also, in their motion for summary judgment, the Sautys argued they were entitled to a 

presumption that Frazin acted in bad faith pursuant to section 92.109(d) because, within thirty 

days after the Sautys surrendered possession of the property, Frazin failed to both return their 

security deposit and to provide an accounting. Further, the Sautys argued that Frazin could not 

overcome the presumption of bad faith because the damages she alleged were normal wear and 

tear, which is prohibited under section 92.104(b). In addition, the Sautys argued, pursuant to 

section 92.109(c), Frazin could not meet her burden to show that her retention of the security 

deposit was reasonable because some of the damages were “unknown” and “could not be 

quantified.”

After the county court granted Frazin’s motion for new trial, Frazin filed her response to 

the motion for summary judgment, arguing she raised issues of material fact, precluding 

summary judgment. In part, Frazin responded that she raised issues of material fact as to 

whether she violated chapter 92, subchapter C of the Texas Property Code because she presented 

evidence that: (1) as to her affirmative defense pursuant to section 92.104(c)(1)–(2), the Sautys 

owed rent at the time they “surrendered possession” of the property and there was no controversy 

 1 Although the Sautys titled it a “Motion for Traditional and No Evidence Summary Judgment” and included no-evidence summary judgment 

law, they did not provide in the motion, or on appeal, any argument as to why they should be granted a no-evidence summary judgment. 

Further, the only claim before the county court was the Sautys’ claim for failure to return the security deposit and Frazin asserted her 

affirmative defense for the first time when she filed her response to the Sautys’ motion for summary judgment.
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concerning the amount of the rent owed, which excused her from providing the Sautys with an 

accounting as required by section 92.103(c); and (2) in June 2009, the Sautys’ withdrew the 

forwarding address they provided in December 2008, and did not provide another forwarding 

address until August 2009, changing her deadline to provide an accounting pursuant to section 

92.107(a). Frazin claims she met the changed deadline by providing an accounting of the deposit 

and she has no liability under the property code. Also, Frazin responded, in part, that she raised 

issues of material fact, rebutting the presumption of bad faith because she presented evidence 

that: (1) she believed the deductions were proper; and (2) there was extensive damage to the 

property.

2

 Finally, Frazin responded that she raised an issue of material fact as to section 

92.109(c) because (1) the Sautys breached the lease by turning the electricity off during the last 

day of the lease; (2) the damage to the property did not exist before the Sautys occupancy; and 

(3) the damage caused by the Sautys exceeded the amount of the security deposit.

The county court granted the Sautys’ motion for summary judgment and awarded them 

$6,585 in damages, but denied their request for attorneys’ fees because they failed to include a 

request for attorneys’ fees in their petition.

II. JURISDICTION

The Sautys argue the county court, and hence, this Court does not have jurisdiction to 

hear this appeal because Frazin failed to timely file and obtain an appeal bond, violating Texas 

Rules of Civil Procedure 567 and 571. In her reply brief, Frazin responds that the Sautys have 

not prayed for the county court’s judgment to be vacated, the county court rejected the Sautys’ 

jurisdictional argument on “factual grounds,” and the Sautys have not appealed the county 

court’s order granting Frazin’s motion for new trial. 

 2 In her response to the Sautys’ motion for summary judgment, Frazin does not specify whether the alleged damages to the property raised a fact 

issue as to whether she violated chapter 92, subchapter C, rebutted the presumption of bad faith, or both. However, on appeal, Frazin argues 

only that the damages raised a fact issue rebutting the presumption of bad faith.
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Whether an appellant timely filed an appeal bond and thereby conferred jurisdiction on 

the county court presents a legal question, which a court of appeals reviews de novo. Watkins, 

286 S.W.3d at 60. The defendant may properly challenge the county court’s jurisdiction in a 

dilatory plea to the jurisdiction and thereby defeat the plaintiff's cause of action before the merits 

of the plaintiff's claims are determined. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 

(Tex. 2000); Watkins, 286 S.W.3d at 60.

The Texas Rules of Civil Procedure provide the procedures for perfecting an appeal from 

a judgment of a justice of the peace court. See TEX. R. CIV. P. 571–574; Watkins, 286 S.W.3d at 

60. In order to perfect an appeal to the county or district court from a justice of the peace court, 

an appellant must: (1) file an appeal bond as required by rule 571 or file an affidavit of inability 

to pay under rule 572; and (2) pay to the county clerk, within twenty days after being notified to 

do so by the county clerk, the costs on appeal as required by Rule 143a. Watkins, 286 S.W.3d at 

60. Compliance with both requirements is jurisdictional. Watkins, 286 S.W.3d at 60.

Rule 571 provides in pertinent part:

The party appealing . . . shall within ten days from the date a judgment or order 

overruling motion for new trial is signed, file with the justice a bond, with two or 

more good and sufficient sureties, to be approved by the justice, in double the 

amount of the judgment, payable to the appellee, conditioned that appellant shall

prosecute his appeal to effect, and shall pay off and satisfy the judgment which 

may be rendered against him on appeal. . . . The appeal shall not be dismissed for 

defects or irregularities in procedure, either of form or substance, without 

allowing appellant five days after notice within which to correct or amend same.

TEX. R. CIV. P. 571.

However, a court of appeals liberally construes the rules of appellate procedure to protect 

a party’s right to appeal. Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997); Watkins, 

286 S.W.3d at 61. A court of appeals has jurisdiction over any appeal in which the appellant 

files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction. Linwood v. 
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NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994); Grand Prairie Indep. Sch. Dist. v. Southern Parts 

Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991); Watkins, 286 S.W.3d at 61.

The record shows that the Sautys filed a motion to dismiss for lack of jurisdiction in the 

county court, arguing Frazin filed her appeal bond on December 15, 2010. A copy of the 

December 15, 2010 appeal bond was attached to their motion to dismiss. The county court 

granted the motion and dismissed the appeal due to Frazin’s failure to timely file an appeal bond. 

Frazin filed a motion for new trial arguing a trial was held in the justice of the peace court on 

November 17, 2010, she filed a motion for new trial in the justice of the peace court on 

November 27, 2010, and she filed an appeal bond on November 29, 2010. As a result, she 

contended that her appeal bond was not due until twenty days after the date the justice of the 

peace court signed the judgment of default, but was actually filed “within the first business day, 

10 [days] after the trial date in the [justice of the peace] [c]ourt.” Based on the argument during 

the hearing and the evidence submitted, the county court granted Frazin’s motion for new trial. 

The order states that the county court “f[ound] the appellate bond filed November 29, 2010 was 

timely and in good faith and f[ound] that the appeal was perfected. The [county court] further 

f[ound] that the appellate bond filed December 13, 2010 is sufficient.” The November 29, 2010 

appeal bond is not in the record on appeal.

In their brief on appeal, the Sautys fail to mention the November 29, 2010 appeal bond 

and the county court’s findings. They also do not explain why the county court’s determination 

that the appeal bond was timely is incorrect. Further, the record before us contains no reporter’s 

record. Based on the record before us, we conclude the Sautys have not shown the county court 

erred when it granted Frazin’s motion for new trial and determined it had jurisdiction over 

Frazin’s appeal from the judgment of the justice of the peace court. Accordingly, this court has 

jurisdiction over this appeal.
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III. FAILURE TO RETURN SECURITY DEPOSIT

In issues one and two, Frazin asserts two main arguments claiming the county court erred 

when it granted the Sautys’ motion for summary judgment on their claim for failure to return the 

security deposit because Frazin raised issues of material fact as to whether: (1) Frazin retained 

the security deposit in violation of chapter 92, subchapter C of the Texas Property Code; and (2) 

Frazin rebutted the presumption of bad faith. Specifically, Frazin argues she did not retain the 

security deposit in violation of the statute because she raised an issue of material fact on her 

affirmative defense that she was excused from providing an accounting of the deposit when the 

Sautys surrendered the premises while still owing rent, and she raised an issue of material fact as 

to the date the Sautys provided her with their forwarding address. Frazin claims because of the 

new forwarding address being sent, the accounting for the Sautys’ deposit was sent timely and 

she has no liability under the property code. Also, Frazin argues she raised issues of material 

fact, rebutting the presumption of bad faith, because she believed she was entitled to retain the 

security deposit, the damages to the property were extensive, and Frazin’s retention of the 

security deposit was reasonable since she was securing payment for the remaining rent. Frazin 

does not argue that she raised an issue of material fact that her retention of the security deposit 

was reasonable pursuant to section 92.109(c). The Sautys respond that after providing notice to 

Frazin, they surrendered possession of the property before the lease terminated and made all 

rental payments due under the lease even though they did not occupy the property.

A. Standard of Review

The standard for reviewing a traditional summary judgment is well-established. See 

Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546, 548–49 (Tex. 1985); Tex. Integrated Conveyor Sys., Inc. v. Innovative 

Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.—Dallas 2009, pet. denied). An 
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appellate court reviews a summary judgment de novo to determine whether a party's right to 

prevail is established as a matter of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 

211, 215 (Tex. 2003); Tex. Integrated, 300 S.W.3d at 365. When reviewing a motion for 

summary judgment, the appellate court takes the nonmovant’s evidence as true, indulges every 

reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the 

nonmovant. Provident Life, 128 S.W.3d at 215; Tex. Integrated, 300 S.W.3d at 365. When a 

trial court’s order does not specify the grounds for its summary judgment, an appellate court 

must affirm the summary judgment if any of the theories presented to the trial court and 

preserved for appellate review are meritorious. Provident Life, 128 S.W.3d at 216; Tex. 

Integrated, 300 S.W.3d at 365.

B. Applicable Law

A party moving for traditional summary judgment under rule of civil procedure 166a(c) 

has the burden to establish that no genuine issue of material fact exists and that it is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nexstar Broad., Inc. v. Fidelity Commc’ns 

Co., 376 S.W.3d 377, 381 (Tex. App.—Dallas 2012, no pet.). If the movant discharges his

burden, the burden shifts to the nonmovant to present to the trial court any issues that would 

preclude summary judgment. Nexstar, 376 S.W.3d at 381; Hackberry Creek Country Club, Inc. 

v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 50 (Tex. App.—Dallas 2006, pet. 

denied).

Chapter 92, subchapter C of the Texas Property Code governs security deposits in 

residential leases. TEX. PROP. CODE ANN. §§ 92.101–92.109 (West 2007); Pulley v. Milberger, 

198 S.W.3d 418, 427 (Tex. App.—Dallas 2006, pet. denied). A landlord’s duty or a tenant’s 

remedy concerning security deposits as provided in subchapter C may not be waived. TEX.

PROP. CODE ANN. § 92.006(a) (West 2007); Pulley, 198 S.W.3d at 427; Hardy v. 11702 Mem’l, 
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Ltd., 176 S.W.3d 266, 275 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A security deposit is 

defined as “any advance of money, other than an advance payment of rent, that is intended 

primarily to secure performance under a lease of a dwelling.” TEX. PROP. CODE ANN. § 92.102; 

Pulley, 198 S.W.3d at 427. 

To prevail on a cause of action for a landlord’s bad faith retention of the security deposit 

pursuant to section 92.109(a), the tenant must prove the landlord: (1) acted in bad faith; and (2) 

retained the security deposit in violation of chapter 92, subchapter C of the Texas Property Code. 

TEX. PROP. CODE ANN. § 92.109(a); Pulley, 198 S.W.3d at 428. When a landlord is found liable 

under section 92.109(a), the tenant may recover from the landlord: (1) an amount equal to the 

sum of $100; (2) three times the portion of the security deposit wrongfully withheld; and (3) the 

tenant's reasonable attorney’s fees in a suit to recover the security deposit. TEX. PROP. CODE 

ANN. § 92.109(a); Pulley, 198 S.W.3d at 428.

A landlord is required to refund a security deposit to the tenant on or before the thirtieth 

day after the date the tenant surrenders the premises. TEX. PROP. CODE ANN. § 92.103(a); Pulley, 

198 S.W.3d at 427. Before returning a security deposit, the landlord may deduct from the 

security deposit damages and charges for which the tenant is legally liable under the lease or as a 

result of breaching the lease. TEX. PROP. CODE ANN. § 92.104(a); Pulley, 198 S.W.3d at 427. 

If the landlord retains all or part of the security deposit, the landlord shall give the tenant, 

within thirty days of the tenant’s surrender of the premises: (1) the balance of the security 

deposit, if any; (2) a written description of the damages; and (3) an itemized list of all 

deductions.3

 TEX. PROP. CODE ANN. §§ 92.104(c), 92.109(d); Pulley, 198 S.W.3d at 427. 

However, the landlord is not obligated to return a tenant’s security deposit or give the tenant an 

 3 The property code uses the terms “accounting,” “written description and itemized list of the deductions,” and “written description and itemized 

list of the damages and charges.” These terms appear to be synonymous. Accordingly, we will use the term “accounting” throughout this 

opinion.
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accounting until the tenant gives the landlord a written statement of the tenant’s forwarding 

address for the purpose of returning the security deposit. TEX. PROP. CODE ANN. § 92.107(a); 

Pulley, 198 S.W.3d at 427. Further, the landlord is not required to give the tenant an accounting

if: (1) the tenant owes rent when he surrenders possession of the premises; and (2) there is no 

controversy concerning the amount of rent owed. TEX. PROP. CODE ANN. § 92.104(1)(c).

C. Application of the Law to the Facts

The Sautys moved for traditional summary judgment on their claim for failure to return 

the security deposit. To prevail on their motion for summary judgment in this case on their claim 

for failure to return the security deposit, the Sautys were required to prove, as a matter of law,

that Frazin: (1) acted in bad faith; and (2) retained the security deposit in violation of chapter 92, 

subchapter C of the Texas Property Code. See TEX. PROP. CODE ANN. § 92.109(a); Pulley, 198 

S.W.3d at 428. Specifically, the Sautys’ argued Frazin retained the security deposit in violation 

of chapter 92, subchapter C of the Texas Property Code because:

[T]he Lease expired by its own terms on June 31 (which [the Sautys] interpret as 

June 30, the last day of the month) 2009, and [[the Sautys] provided a forwarding 

address on December 24, 2008, and when [the Sautys] relocated (after the date the 

refund was due), on August 18, 2009, [the Sautys] updated the address. At no 

time during the term of the Lease did [Frazin] notify [the Sautys] of any breach of 

the lease. [Frazin] did not send any notice of intent to withhold the deposit until 

August 21, 2009, which was fifty[-]two (52) days after the termination of the 

Lease, and more than thirty (30) days after the date any right to offset was 

permissible under statute.

To defeat the Sautys’ motion for summary judgment, Frazin was required to raise an 

issue of material fact that she did not retain the security deposit in violation of section 92.109(a). 

See Nexstar, 376 S.W.3d at 381. In her response to the motion for summary judgment and on 

appeal, Frazin argues she raised an issue of material fact that the December 24, 2008 notice of 

forwarding address was withdrawn approximately two weeks before the lease period ended at the 

end of June 2009. She claims that the second notice providing their new address was dated 
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August 18, 2009. Frazin claims that because section 92.107(a) does not require her to return the 

security deposit until the Sautys provided her with a forwarding address, the accounting, which 

she mailed on August 28, 2009, was timely. Hence, she claims the timeliness of the accounting 

defeats the Sautys’ claim.

Frazin attached her affidavit to her response to the motion for summary judgment. In her 

affidavit, she states, “Approximately two weeks before the lease period ended the [Sautys] 

expressly instructed me, in writing, not to use their previous address for further correspondence.” 

Conversely, in his deposition, Marc Sauty stated the first address in France was good until 

August 2009. Accordingly, we conclude Frazin raised an issue of material fact regarding 

whether she retained the security deposit in violation of chapter 92, subchapter C of the Texas 

Property Code, precluding traditional summary judgment on the Sautys’ claim for failure to 

return the security deposit.

IV. CONCLUSION

This Court has jurisdiction over this appeal. The county court erred when it granted 

traditional summary judgment in favor of the Sautys because Frazin raised an issue of material 

fact regarding whether she retained the security deposit in violation of chapter 92, subchapter C 

of the Texas Property Code. 

The county court’s final judgment is reversed and the case is remanded for further 

proceedings consistent with this memorandum opinion.

120137F.P05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

LORRIE FRAZIN, Appellant

No. 05-12-00137-CV V.

MARC SAUTY AND BENEDICTE 

SAUTY, Appellees

On Appeal from the County Court at Law 

No. 3, Dallas County, Texas

Trial Court Cause No. CC-11-00258-C.

Opinion delivered by Justice Lang. Justices 

Moseley and Francis participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court for further proceedings consistent 

with this opinion.

It is ORDERED that appellant LORRIE FRAZIN, recover her costs of this appeal from 

appellees MARC SAUTY AND BENEDICTE SAUTY.

Judgment entered this 5th day of August, 2014.