### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00503- CV

Ke nt Kohler , Appellan t

v. Claudi a Chiqu illo, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 13- 0839 -C, H ONO RAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

This cause orig inated as a small-claims-cour t lawsuit broug ht pro se by Kent Kohler, appellant here , to rec over a $1,950 secur ity deposit from his former landlord, appellee Claudia Chiquil lo. Kohler partially preva iled in that forum, and Chiquil lo, with assi s t ance of 1 counsel, pursued an appea l de novo to the county court at law. Those proce eding s conclude d with

a final summary judgme nt that Kohler take nothing on his cl ai m s and also awa rding Chiquil lo $6,501.73 in damag es on a counter claim for brea ch of their lease , plus attorney ’s fee s. Kohler, who has rema ined p ro s e at ever y stag e of the proce eding s, then perf ecte d this appea l, urg ing sever al
g rounds for r ever sal. We will affirm in par t and re verse in part.
I n rec ent y ear s, the Texas Supreme Court has emphasized the policy g oal of ensuring

acc ess t o j u s t i ce for all Texans, including those who, like Kohler here , attempt to navig ate our

He obtaine d a judg ment of $1,300. 1civil justice sy stem pro se. But when courts decide specific case s, the high court’s m an d at e h as

rema ined that “[l] itigants who repr esent themselves must comply with the applicable p ro cedural rules,” beca

use otherwise “they would be g iven an unfair ad v an t ag e over litigants repr esente d by counsel.” Those proce dural rules are ultimately fata l to Ko hler’s principal arg uments on

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appea l—but they

also work some de triment on Chiquil lo as well. Given the ultimate importance of proce dure in this case , a more-de tailed-than- usual

rec itation of its proce dural history is in order. T h i s b egins with Kohler’ s live pleading , which
t h ro ug hout the case rema ined the orig inal petition he had filed in small-claims court. L i b er al l y construing this pleading , Kohler soug ht rec overy of a $1,950 secur ity deposit from Chiquil lo under the parties’ lease ag ree ment, a Texas Association of Realtors standard form. The form incorporated require ments from the Texas Property Code that included an obliga tion on the part of a landlord to ref und a secur ity deposit to the tenant on or befor e the 30th day afte r the date the tenant surre nders the pre mises. Howeve r, the re levant Proper ty Code provisions a lso pe rmit the landlord to deduc t 3 from the deposit damag es and char g es for which the tenant is le g ally responsible for brea ching the lease , including damag es exceeding “norma l wea r and tear .” I f the landlord reta ins all or part of a

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secur ity deposit on this basis, the Property Code further require s he or she to ref und the net balanc e

Mansfield State Bank v. Cohn , 573 S.W .2d 181, 184–85 (Tex. 1978) (fur ther observing that 2 “[t] here cannot be two sets of proce dural rules, one for litigants with counsel and t h e other for litigants re prese nting themse lves”). Tex. P rop. Code § 92.103(a ). 3 Id . § 92.104(a) , (b). 4 2(if any

) toge ther with a “wr itten de scription and itemiz ed list of all deductions.” Howeve r, “[t] he 5 landlord is not obliga ted to return a tenant’s secur ity deposit or g ive the tenant a written descr iption of damag es and char g es until the tenan t gi ves the landlord a written statement of the tenant’s forwa rding addre ss for the pur

pose of r efunding the sec urity deposit.” 6
I n addition to incorporating these statutory requi reme nts, the lease ag ree ment elabor ated that Chiquil lo could deduct from the secur ity deposit “re asonable char g es” for, inter alia, damag es exc ee d i ng “norma l wea r and tear ” (def

ined there in as “dete rioration that occur s without
neg lige nce, car elessness, acc ident, or abuse” ), costs to clea n and maintain the proper ty , and unpaid rent, and that Kohler was obliga ted to pay Chiquil lo for deductions that exceede d the amount of the

secur ity deposit within ten day s of written demand. The lease also provided that Chiquillo had no obliga tion to make any ref und until 30 day s afte r Kohler surre ndere d the proper ty and provided her

a written statement of his forwa rding addre ss. The premise of Kohler’ s claim was thus that the lease compelled Chiquil lo to pay him the entirety of his secur ity -deposit amount, with no deductions, and that she had no g rounds for w ithholding or de lay ing pa y ment. I n response to Kohler’ s pleading , Chiquil lo answe red with a g ener al denial and

asser ted as aff irmative defe nses “contr ibutory neg lige nce” (pre sumably a ref ere nce to the lease ’s definition of “norma l wea r and tear ”) and “estoppe l.” She also interposed a counter claim for brea ch of the lease , alleg ing that Kohler had failed to compensa te her for damag es bey ond normal wea r and

Id . § 92.104(a) –(c)

. 5 Id . § 92.107(a)

. 6 3tear that exceede d the amount of his secur ity deposit. Ba sed on that theory , Chiquil lo pray ed for

damag es and a ttorney ’s fe es. 7

Ultimately , in the trial court, Chiquil lo filed a “tra ditional” motion for summary judgme nt as t o both Kohler’ s claim and her own. Her evidenc e included the l ease ag ree m ent and her own aff

idavits, in which she testified reg arding alleg ed proper ty damag e she attributed to Kohler and authentica ted photogr aphs of the proper ty and estimates and invoices rela ted to repa irs. Citi ng these documents, Chiquil lo aver red that Kohler owed her a total of $6,501.73 in damag es, consisting of damag e to the premises’ floor that had been estimated t o cost $6,231.57 to repa ir, damag e to
two sinks that had cost her a total of $389 to r epair , $276.16 in pr orate d rent left unpaid by Kohler prior to vac ating on May

5, 2013, and anothe r $276 in clea ning c osts. Chi quillo also refe renc ed a printout of a May 11, 2013 text from Kohler in which he ha d provided his f orwa rding addre ss a

nd acknow ledg ed “the damag e I cause d on the hardw ood floors and [t hat] as discussed befor e I moved out I will take ca

re of this.” Finally , Chiquil lo attache d aff idavits and bil ling recor ds to prove up 8 trial-leve l attorney ’s fee s in the amount of $1,500 and a total of $20,000 in conditional appellate attorney ’s fe es. R el y ing on this proof, Chiquil lo moved for summary judgme nt on the g roun d t h at Ko h l er could not rec over on his claim as a matter of law beca use the evidenc e conclusively

See Tex. Civ. Prac. & Rem. Code § 38.001(8) (“A perso n m ay re co v er rea sonable 7 attorney ’s fee s from an individual or corpor ati on, in addition to the amount of a valid claim and costs, if the cla im is for . . . an ora l or written contr act.” ). But Kohler’ s text continued, “I f y ou try to bill me for clea

ning of the house or additional 8 items[ ,] I will be more than happy to visit with y ou in small claims court.” He al s o refere nced “testimonials” from neig hbors that had been part of his proof befor e the small-claims court but a re not within the summ ary -judg ment rec ord. 4established that permissible deductions for proper ty damag e bey ond “norma l wea r and tear ,” unpaid rent, and clea

ning costs exceede d the amount of his secur ity deposit. Alterna tively , Chiquil lo soug ht
summary judgme nt on her aff irmative defe nses of “contr ibutory neg lige nce” and “estoppe l.” And, citing the same underly ing evidenc e, Chiquil lo soug ht summary judgme nt as to liabili ty only on her
counter claim for brea ch of the lease , em p h as i z i n g that Rule of Civil Procedur e 166a expli citly permits this prac tice and making no attempt to establish any specific amount of damag es in excess 9 of the $1,950 secur ity -deposit amount. Chiquil lo set her summary -judg ment motion for hear ing on April 30, 2014.

Kohler count er ed wi th a response i n opposition to Chiquil lo’s motion and a crossmotion for summary judgme nt on his own claim under the lease

. He attache d as evidenc e a copy of the lease that differ ed somewhat from Chiquil lo’s version. But more critica lly , Kohler also attache d

a copy of what purported to be an ema i l fr o m C h i quillo providing him the require d written descr iption and it emized list of t he deductions she was claimin g fr o m h is secur ity deposit. There

are two fea tures of this email of potential signific ance to the par ties’ dispute. The first is the date of t he email—J une 11, 2013, which would be the 31st day afte r t he date of the May 11, 2013 text in w hich Kohler had provided his forwa rding addre ss. The second potentially signific ant fea ture

1 0 of the email is the amount of deductions Chiquil lo claimed—in contra st to her subsequent aff idavit

See Tex. R. Civ. P. 16 6 a( c) (“ T h e judgme nt soug ht shall be rende red forthwith if [t he 9 summary -judg ment rec ord] show[s] that, except as to the amount of da mag es, t here is no g enuine issue as to any materia l f

act and the moving party

is entitled to judgment as a matter of la

w on the issues expressly

set out in the motion . . . .”). See infra note 11 and a ccompa ny ing te x t. 1 0 5claiming over $6,500 in damag es, her email claimed only $2,310.33 , wi th the differ ence being

attributable primar ily

to a much lower

estimate of f

loor repa ir costs of $1,534.17.
I n support of both his response and cross-motion, Kohl er arg ued that the evidenc e prese nted by both s i d es co l l ec t i v ely established or at least raised a fac t issue as to whether he

was entitled to the benef

it of Property Code Section 92.109. That statute provides that a landlord’s failure either to return a secur ity deposit or to provide the require d written descr ipt i on and i t emization of deductions within the 30-day deadline g ives rise to a presumption that h e o r s h e 1 1
acte d in bad faith. Unless the landlord can rebut that presumption as to his rete ntion of a secur ity 1 2 deposit, the landlord is liable to the tenant for an amount equal to the sum of $100, plus three times the amount wrong fully withheld, plus the reasonable attorney ’s fee s the tenant incurs in a suit to

rec over the deposit. Simi larly , any failure by

the landlord to provide the written description and 1 3 itemiz ed list as require d that is in bad faith (including that wh i ch i s presumed to be so and not rebutted) forf

eits the landlord’s rig ht “to withhold any portion of the secur ity deposit or to bring suit
ag ainst the tenant for damag es to the premises,” plus entitles the tenant to rea sonable attorney ’s fee s

More specifica lly , as previously noted, S ec t i o n 9 2.109 provides that the deadline is the 1 1 30th day afte r the date the tenant surre nders possession, Tex. Prop. Code § 92.109(d), but the lease provided that the trig g er date for the 30-day period was the date Kohler pro v i d ed his forwa rding addre ss. See also id

. § 92.107(a) (“The landlord is not obliga ted to return a tenant’s secur ity deposit or give the tenant a written description of damag es and char g es unt il the t enant gives the landlord a written statement of the tenant’s forwa rdin g ad d ress for the purpose of ref unding the secur ity deposit.”).

See id . § 92.109(d). 1 2 See id . § 92.109(a)

. 1 3 6in a suit to rec over the deposit. I n addition to his relianc e on Property Code Section 92.109, Kohler 1 4 attacke d the leg al sufficie ncy of Chiquil lo’s summary -judg ment g rounds rela ting to her “estoppe l”

a n d “ c o n tr ib u to r y n e g li g e n c e ” d e f

e n ses, observing (ac cura

tely ) that Chiquil lo “did nothing other tha n list the elements of the aff irmative defe nse of Estoppel” and disputing that contributory neg lige nce

was a defe nse to his contrac t claim. Wit hin the hour prior to the sched u l ed h ea ri ng on April 30, 2014, Chiquil lo filed

sever al written objections to various aspec ts of Kohler’ s filing. This inclu d ed an objection to Kohler’ s cross-motion for f ailure to ser

ve it at least 21 da

y s prior to the hea

ring

. Kohler ha d not 1 5 included a cer

tificate of service in the document, so Chiquil lo relied on extrinsi c proof that Kohler had serve d her by cer

tified mail, re t u rn re ce i p t reque sted on April 22, the eig hth day befor e the hear ing. Although thus suppor ting her timeliness objec tion as to Kohler’ s motion, Chiquillo’s
arg ument and evidenc e also had the eff ect of conce ding that Kohler had timely serve d her with his
response to her moti o n . But Chiquil lo also asser ted other ty

pes of objections to the response , 1 6 including an objection to the entirety of Kohler’s s u m m ar y -j udg ment evidenc e based on lack of authentica tion. She further objected to Kohler’s g rounds base d on Property Code Section 92.109, observing that he had not plea ded that cla im or defe nse.

See id . § 92.109(b). 1 4 See Tex. R. C iv. P. 166a(c). 1 5 See id

. R. 166a(c ) (“Except on leave of court, the adver se party , not later than seven day s 1 6 prior to the day of hear ing may file and serve opposing aff idavits or other written response .”); Lewis v. Blake , 876 S.W .2d 314, 315 (Tex. 1994) (per curia m) (summary -judg ment response is timely if mailed by seventh da

y prior to hea

ring ). 7T h e s u mm a r y -judg ment hear ing went forwa rd as schedule d, and there we r e n o f u r th e r filings in advanc e of the court’s ruling , nor was a reporter ’s record of the proc eeding s made. The

rec ord does not ref

lect that Kohler soug ht a continuance or otherwise prese rved any complaint with the timing of the hear ing or any perc eived lack of opportunity to respond to Chiquil lo’s objections. Nor is there any indication that Kohler soug ht to amend his ple ading s. Conversely , the rec ord also does not ref

lect that Chiquil lo obtained any ruling or order on her objections to Kohler’ s summary judgme nt evidence

.

Following the hear ing, the trial court signe d an order g ra n t i n g o n l y C h i q u i l l o’s motion, holding specific ally that she was entitled to summary judgme nt on her b re ac h -of- lease
counter claim and that Kohle r “ha s not pled any aff irmative defense that would prec lude summary judgme nt in this case . ” T h e co u rt further held that Chiquil lo had neg ated any rig ht of Kohler to

rec over on his brea ch-of

-lea se claim and had also conclusively es t ablished bot h her “contributory
neg lige nce” and “estoppe l” aff irmative defe nses. The order additionally awa rded Chiquil lo $6,50 1

. 7 3 i n d am ages for brea ch of the lease (cor responding to the amount of damag es she had claimed in her aff

idavit), plus all of the attorney ’s fee s she had reque sted and proven. Finally , the 1 7 order included Lehmann lang uag e confirming th e co u rt ’s intent to dispose of all claims so as to comprise a

final judg ment. 1 8

The judgme nt actua lly contains two larg ely duplicative para g raphs awa rding Chiquil lo 1 7 $1,500 in trial-leve l attorney ’s fee s. This appea rs to be a cler ical err or, as she purported to prove up only one aw ard of

$1,500 in trial-level f

ees. See Lehmann v. Har-C o n C o r p
. , 39 S.W .3d 191, 205–06 (Tex. 2001) (setting forth 1 8 lang uag e that indicate s judgme nt is final and appe alable)

. 8Kohler has appea led this judgme nt, seeking reve rsal of the summary judgme nt in

Chiquil lo’s favor and rema nd for further proce eding s; he no longe r u rge s that he is entitled to
summary judgme nt on his own brea ch-of -the-le ase claims. He bring s five issues. We consider them without the aid of Chiquillo’s perspective, a s she has opted not to file a ppellate br iefing

. I n his first issue, Kohler complains that the trial court “re fused to h ea r [ his]
arg uments about summary judgme nt.” By this, as we understand his arg uments, Kohler is ref err ing
to Chiqui l l o’s objections to his summary -judg ment evidenc e for lack of authentica tion, which he appar ently perc eives that the trial court sustained. To the contra ry , Chiquil lo did not obtain any ruling on her objections, let alone one excluding Kohler’ s evidenc e, so those o b j ec tions wer e waived. Consequently , Kohler’ s summary -judg ment evidenc e was befor e the trial court a nd can 1 9 be conside red on a

ppeal. Kohler also asser

ts that the trial court “re fused to hear the arg uments included in [hi s]
response beca

use the response lacke d a Certifica te of Service .” Ag ain there is no indication to that eff ect from the rec ord, w h ic h inste ad ref lects that Kohler’ s response was timely serve d, was there fore befor e the trial court, and can be considere d on appea l. Be cause these complaints would appea r to be founde d on simple misunderstandings of the re cord, w e over

rule Kohle r’s fir st issue.

See, e.g. , Akhter v. Schlitterbahn Beac h Resort Mgmt., LLC , No. 03-13 -0 0 1 1 7 -C V, 1 9 2 0 13 Tex. App. L EXI S 10522, at *3–4 (Tex. App.—Austin Aug

. 22, 2013, no pet.) (m em . o p . ) (objec tions to form of summary -judg ment proof are waived if objecting party fails to obtain ruling on objection or written order signe d by trial court); see also Tex. R. Civ. P. 166a(f ) (“D efe cts in the form of affida vits

. . . will not be grounds for reversa l unless specific ally pointed out by

objection by an opposing party

with opportunity , but refusa l, to amend.”)

. 9I n Kohler’ s second issue, he bring s forwa rd his arg uments in reliance o n P roperty Code Section 92.109, urg ing that the evidenc e previously discussed raises fac t issues as to whether Chiquil lo has any rig ht to bring her claims at this juncture and whether h e i s en t i t l ed to relief under that statute. Whatever the potential merits of these arg uments, we are compelled to overr ule them beca

use Kohler’ s live pleading s did not raise Section 92.109 as a bar to his liability under the lease , as was require d for him to rely on same, and Chiquil lo obje cted to tha t a bsence

. Fur

ther, 2 0 2 1 in holding that Kohler “has not pled any aff irmative defe nse that would prec lude summary judgme nt in this case,” the t rial court nece ssarily sustained C hiquillo’s objection, and we do not understand Kohler to be challeng ing this proc edura l ruling, a s opposed to urg ing the merits of his defe nse.

I n his third issue, Kohler urg es that “a question of fac t [remains] reg arding whether [C hiquillo] had any lawful rig ht to reta in any of [hi s] secur ity deposit.” I n support of that asser tion, Kohler relies in part on the substance of his second issue, which we must reje ct for the same rea sons. Howeve r, Kohler also points out the “discre pancie s” in the amounts Chiquil lo claimed as damag es in her summary -judg ment aff idavit, $6,501.73, versus her ear lier text citing a $2,301.33 fig ure. We
ag ree that this discrepa

ncy prese nts a fac t issue as to the specific amount of damag es Chiquil lo incurre d, prec luding the summar y judgme nt a

war ding her the $6,501.73 fig ure. I ndeed, Chiquillo

See Tex. R. Civ. P. 94 (re quiring aff irmative pleading of “any

. . . matter constituting an 2 0 avoidanc e or aff

irmative defe nse”) ; see a l s o Z orrilla v. Aypc o Constr. II, LLC , 469 S.W .3d 143, 155–56 (Tex. 2015) (explaining that aff irmative defe nses his to r ic a ll y in c lu d e g rounds that, if proven, defe at liability even if plaintiff’s alleg ati o n s ar e true, while avoidanc es denote additional fac ts that, if proven, would deprive plaintiff’s alleg ations of the leg al eff ect they otherwise would have)

. Cf

. Roark v. Stallw orth Oil & Gas., Inc. , 813 S.W

. 2 d 4 92, 494–95 (Tex. 1991) 2 1 (re cog nizi ng that summary judgme nt g round can be founded on unpleade d aff irmat i v e d ef

en se if opposing pa

rty fails to object to the abse nce of pleading ). 10would n o t b e en titled to that awa rd via summary judgme nt reg ardle ss beca use, as previously explained, she did not seek any specific amount of damag es in her summary -judg ment motion, only a judg ment as to Kohler’ s liabilit y for br eac hing the lease

. 2 2 On the other hand, Kohler has not demonstrated the exis tence of any fac t issue as to whether Chiquil lo’s damag es were any less than t he $1,950 amount of t he security deposit. Even under Kohler’ s summary -j u dg ment evidenc e, Chiquil lo incurre d at least $2,300 in repa ir costs. This is fata l to Kohler’ s claim ag ainst Chiquil lo for brea ch of the leas e an d corr esponding ly establishes Kohler’ s liab i l i t y for brea ch of the lease (althoug h not the amount of damag es) as a matter of la

w. We acc ording ly

sustain Kohler’s third issue in par t and over rule it in part.
I n his fourth and fifth issues, Kohler challeng es the trial court’s summary judgme nt

on Chiquil lo’s aff

irmative defe nses of “contr ibutory neg lige nce” and “estoppe l.” Be cause we have held that Kohler cannot preva il on his claims for rea sons independe nt of these defe nses, we need not

rea ch these g rounds. 2 3

The fore g oing holdings require that we: (1) aff i rm the trial court’s summary j u d gm en t t h at Kohler take nothing on his claims for brea ch of the lease ; (2) aff irm the summary judgme nt on Chiquil lo’s brea ch-of -l ea s e cl ai m s to the extent of liability only ; and (3) reve rse the judgme nt awar d of dama g es to Chiquill o and re mand that issue for f urther pr ocee dings. 2 4

See, e.g. , McConnell v. Southside Indep. S ch

. Di st. , 858 S.W .2d 337, 341 (Tex. 1993) 2 2 (summary judgme nt must st and or f all exclusively

on g rounds asser

ted in the motion). See Tex. R. App. P . 47.1. 2 3 Kohler ha s not broug ht any challeng e to the judg ment awa rd of a ttorney ’s fe es. 2 4 11__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med in part; Rever sed and Rema nded in par

t Filed: Jul y

15, 2016

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