No. 01-14-00764-CV

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

MAGNOLIA FINLAY AND ANDREW FINLAY, 

 Appellants, 

v.

ELIZABETH BLANTON, 

Appellee. 

APPELLEE’S BRIEF

From the County Civil Court of Harris County, Texas, 

County Court at Law No. 1, Trial Court Case No. 1047130 

FRANK O. CARROLL III

TBA No. 24082785

MIA B. LORICK

TBA No. 24091415

Roberts Markel Weinberg Butler Hailey PC

2800 Post Oak Blvd., 57th Floor

Houston, Texas 77056

Tel: (713) 840-1666

Fax: (713) 840-9404

fcarroll@rmwbhlaw.com

mlorick@rmwbhlaw.com

ATTORNEYS FOR APPELLEE 

ELIZABETH BLANTON 

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00764-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/16/2015 12:50:27 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/16/2015 12:50:27 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITIES OF PARTIES AND COUNSEL

APPELLANTS:

MAGNOLIA FINLAY AND ANDREW FINLAY 

Pro Se:

7542 Oakwood Canyon Drive

Cypress, Texas 77433

APPELLEE:

ELIZABETH BLANTON

Appellate Counsel:

Frank O. Carroll III

Mia B. Lorick

Roberts Markel Weinberg Butler Hailey PC

2800 Post Oak Blvd., 57th Floor

Houston, Texas 77056

Trial Counsel:

Dustin C. Fessler

Roberts Markel Weinberg Butler Hailey PC

2800 Post Oak Blvd., 57th Floor

Houston, Texas 77056
iii

REQUEST FOR ORAL ARGUMENT

Pursuant to Appellate Procedure Rule 52.8(b)(4), Appellee

respectfully requests oral argument on belief it will materially aid the 

Court in determination of the legal issues presented for review.
iv

TABLE OF CONTENTS

IDENTITIES OF PARTIES ......................................................................ii

REQUEST FOR ORAL ARGUMENT......................................................iii

TABLE OF CONTENTS ..........................................................................iv

TABLE OF AUTHORITIES.....................................................................vi

RECORD REFERENCES ......................................................................viii

STATEMENT OF THE CASE .................................................................ix

RESPONSE TO ISSUES PRESENTED................................................... x

SUMMARY OF THE ARGUMENT ..........................................................1

STATEMENT OF FACTS.........................................................................2

PROCEDURAL BACKGROUND..............................................................5

ARGUMENT AND AUTHORITIES .........................................................6

I. STANDARD OF REVIEW ......................................................6

II. THE TRIAL COURT DID NOT ERR IN ENTERING A 

TAKE NOTHING JUDGMENT .............................................7

III. THE TRIAL COURT DID NOT ERR IN EXCLUDING 

INADMISSIBLE EVIDENCE AND TESTIMONY..............10

IV. APPELLANTS DID NOT RAISE THE ISSUES OF 

UNTIMELY REPAIRS, FORGERY, OR ERRORS IN THE 

LEASE IN THE TRIAL COURT; THEREFORE, THESE

ISSUES ARE IMPROPER ON APPEAL..............................12

PRAYER ..................................................................................................15
v

CERTIFICATE OF COMPLIANCE........................................................16

CERTIFICATE OF SERVICE.................................................................16
vi

TABLE OF AUTHORITIES

Case Law:

Bank of Garvin v. Freeman,

107 Tex. 523 (1915) .......................................................................... 13

Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) ........................................................ 6

Croucher v. Croucher,

660 S.W.2d 55 (Tex. 1983) ................................................................. 6

Haden v. Sacks,

332 S.W.3d 503 (Tex. App.—Houston [1st Dist.] 2009) .................. 14

Phelps v. Connellee,

285 S.W. 1047 (Tex. 1926) ......................................................... 13, 14

Ortiz v. Jones,

917 S.W.2d 770, 772 (Tex. 1996) ........................................................ 6

Pulley v. Milberger,

198 S.W.3d 418 (Tex. App.—Dallas 2006).................................. 6, 7, 8

Wilson v. O’Connor,

555 S.W.2d 776, 780-81 (Tex. Civ. App.—Dallas 1977, writ dism’d)..7

Statutes:

Tex. Prop. Code § 92.103 ................................................................... 15

Tex. Prop. Code § 92.109 ............................................................. 7, 8, 9

Tex. Prop. Code § 92.109(c).................................................................. 8

Rules:

Tex. R. Evid. 801 ............................................................................... 10

Tex. R. Evid. 611(a) ........................................................................... 11

Tex. R. Civ. P. 47 ......................................................................... 12, 13
vii

Tex. R. Civ. P. 94 ......................................................................... 12, 13

Tex. R. Civ. P. 166a(c) ....................................................................... 14
viii

RECORD REFERENCES

Citations in this Appellee’s Brief to the parties are as follows:

Appellants Magnolia Finlay and Andrew Finlay will be referred to as 

“the Finlays” or “Appellants.”

Appellee Elizabeth Blanton will be referred to as “Blanton” or 

“Appellee.”

Citations in this Appellee’s Brief to the record are as follows:

CR – Clerk’s Record (i.e. CR [page]; e.g. CR 1)

RR – Reporter’s Record (i.e. RR [page]; e.g. RR 1)

Supp. RR – Supplemental Reporter’s Record (i.e. Supp. RR [page]; e.g. 

Supp. RR 1)

Appellants’ Brief – Magnolia Finlay and Andrew Finlay Appellants’

Brief (i.e. Appellants’ Brief [page]; e.g. Appellants’ Brief 1)
ix

STATEMENT OF THE CASE

Nature of the case: This appeal arises from an action brought 

by the Finlays against Blanton, in which 

the Finlays claimed Blanton violated 

Section 92.109 of the Texas Property Code 

because she did not return the Finlays’ 

security deposit at the end of the lease term. 

Trial Court Disposition: The Finlays filed suit against Blanton 

alleging a violation of Section 92.109 of the 

Texas Property Code. (CR 4–5). On March 

24, 2014, the Justice Court, Precinct 5, 

Place 2, entered judgment against Blanton.

(CR 38). Blanton appealed to Harris County 

Court at Law No. 1, and the case was set for 

trial de novo on August 11, 2014. (Supp. RR 

1). The county court entered a take nothing 

judgment on August 12, 2014. (CR 115).

Trial Court: County Civil Court of Harris County, Texas,

County Court at Law No. 1, Trial Court 

Case No. 1047130.
x

RESPONSE TO APPELLANTS’ ISSUES PRESENTED

1. The trial court did not err in entering a take nothing judgment.

2. The trial court did not err in excluding inadmissible evidence and 

testimony.

3. Appellants did not raise the issues of untimely repairs, forgery, or 

errors in the lease in the trial court; therefore, these issues are

improper on appeal.
1

SUMMARY OF THE ARGUMENT

The Finlays contend that the trial court erred in entering a take 

nothing judgment. However, the Finlays are wrong. First, Blanton 

successfully rebutted the presumption of bad faith under Section 92.109 

of the Texas Property Code by establishing that she had a reasonable 

belief that she could use the Finlays’ security deposit to offset some of 

the money due and owing to her by the Finlays. Blanton also provided

testimony that she is an amateur lessor who did not know about the 

requirement to provide a list of itemized deductions. Second, the trial 

court properly excluded inadmissible evidence and testimony under 

Texas Rules of Evidence 801 and 611(a). Accordingly, the trial court did 

not err.

The Finlays attempt to assert issues of untimely repairs, perjury, 

and errors in the lease agreement for the first time on appeal. These

issues were not properly preserved in the trial court and are therefore 

waived on appeal.
2

STATEMENT OF FACTS

This appeal arises from an action brought by the Finlays against 

Blanton, in which the Finlays claimed Blanton violated Section 92.109 

of the Texas Property Code because she did not return their security 

deposit at the end of the lease.

Appellee, Blanton, is the owner and landlord of the property 

located at 21343 Hadrian Drive, Katy, Texas 77449 (the “Property”).1

The Property is Blanton’s only rental property.2 On March 23, 2012, 

Blanton and Appellants—the Finlays—entered into a residential lease 

agreement for the Property.3 The lease agreement was a Texas 

Association of Realtors form lease and therefore provided for the 

duration of the lease, the amount of rent to be paid, and instructions on 

how to send rent to Blanton.4 Because Blanton lives primarily in 

California, the lease agreement instructed the Finlays to deposit their 

rent payments into a USAA Federal Savings Bank account.

5

 The Finlays timely paid their rent into the USAA account at the 

beginning of the lease; however, in June of 2012, the Finlays failed to 

 

1 CR 59.

2 CR 59.

3 CR 59.

4 CR 43–58.

5 CR 59.
3

comply with the lease agreement and mailed their rent to Blanton’s 

home address.6 Blanton emailed the Finlays and cited to the provisions 

in the lease agreement that require payment to be made into the USAA 

account.7 Blanton explained that she would allow the payment this time 

but, going forward she would apply the penalties stipulated in the lease 

to any payments not made in accordance with the lease terms.8 Despite 

the email, the Finlays continued to violate the lease by making late rent 

payments.9 Blanton assessed late fees and charges for the late rent 

payments. The total amount owed to Blanton by the end of the lease 

term was $9,416.66.10

Based on the lease agreement, Blanton did not return the security 

deposit of $1500.00 to the Finlays, but rather, used the $1500.00 as an 

offset to the amount owed to her under the lease agreement.

11 The 

Finlays subsequently filed suit against Blanton asserting a violation of 

 

6 CR 17.

7 CR 17.

8 CR 17.

9 CR 60.

10 Supp. RR 57.

11 CR 60.
4

Section 92.109 of the Texas Property Code—bad faith retention of a 

security deposit.

12

 

12 CR 4–5.
5

PROCEDURAL BACKGROUND

The Finlays filed suit against Blanton alleging a violation of 

Section 92.109 of the Texas Property Code.13 On March 24, 2014, the 

Justice Court, Precinct 5, Place 2, entered a judgment against 

Blanton.14 Blanton appealed to Harris County Court at Law No. 1, and 

the case was set for trial on August 11, 2014.15 The county court entered 

a take nothing judgment on August 12, 2014.16

 

13 CR 4–5.

14 CR 38.

15 Supp. RR 1.

16 CR 115.
6

ARGUMENTS AND AUTHORITIES

I. STANDARD OF REVIEW

When an appellant challenges the factual sufficiency of the 

evidence to support an adverse finding on which it did not have the 

burden of proof, the appellant must demonstrate there is insufficient 

evidence to support the adverse finding.17 In reviewing a factual 

sufficiency challenge, an appellate court considers and weighs all of the 

evidence in support of and contrary to the trial court’s finding and will 

set aside the verdict only if it is so contrary to the overwhelming weight 

of the evidence as to be clearly wrong and unjust.18

When conducting a factual sufficiency review of a trial court’s 

finding, an appellate court will not pass on the credibility of the 

witnesses or substitute its own judgment for the trier of fact.19 The 

amount of evidence necessary to affirm a judgment is far less than that 

necessary to reverse a judgment.20

 

17 Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.—Dallas 2006, pet. denied) 

(citing Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983)).

18 Id. (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Cain v. Bain, 709 

S.W.2d 175, 176 (Tex. 1986)).

19 Id. at 427.

20 Id. 
7

II. THE TRIAL COURT DID NOT ERR IN ENTERING A TAKE 

NOTHING JUDGMENT

Appellants claim that the trial court “abused its discretion by 

misapplying Texas Property Code § 92.109.”

21 Specifically, Appellants 

claim that Blanton did not rebut the presumption of bad faith under 

Section 92.109.22

Although there is a presumption of bad faith when a landlord does 

not return a security deposit, Texas appellate courts have held that a 

landlord can defeat the presumption of bad faith, by proving her good 

faith, i.e., honesty in fact in the conduct or transaction concerned.23

And, “evidence that a landlord had reason to believe she was entitled to 

retain a security deposit to recover reasonable damages is sufficient to 

rebut the presumption of bad faith created under the Texas Property 

Code.”24 Other evidence may include that the landlord is an amateur 

lessor—because the residence is her only rental property—and, the 

landlord has no knowledge of the requirement to submit an itemized list 

 

21 Appellants’ Brief at 11.

22 Id. 

23 Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.—Dallas 2006, pet. denied) 

(Wilson v. O’Connor, 555 S.W.2d 776, 780-81 (Tex. Civ. App.—Dallas 1977, writ 

dism’d)).

24 Id. 
8

of all deductions from the security deposit.25 Pursuant to Section 92.109, 

if the landlord proves the reasonableness of retention of the security 

deposit, the presumption of bad faith is successfully rebutted.26 Blanton 

successfully rebutted the bad faith presumption under Section 92.109. 

During trial the following testimony was elicited:

Question Now, Ms. Blanton, again, how many rental properties do 

you own?

Answer One.

Question Your testimony was that you had no knowledge of the 

requirement that you needed to submit an itemized list of 

all deductions?

Answer Correct.

Question Do you think you gave fair notice to the Finlays during 

the course of the lease that they were incurring late 

charges?

Answer Yes.

Question Is it your sole assertion that the security deposit of $1500 

was exceeded by the past due rent?

Answer Correct.27

 

25 Id. 

26 Tex. Prop. Code § 92.109(c). 

27 Supp. RR 58-59.
9

The Finlays owed over nine thousand dollars in back rent and late 

fees.28 Because the Finlays’ security deposit was $1500.00, Blanton 

believed it was reasonable to retain the Finlays deposit as an offset to 

amounts due and owing to her. Blanton testified that she gave fair 

notice to the Finlays during the course of the lease that they were 

incurring late charges and therefore, Blanton acted in good faith in 

assessing such fees. The above testimony further establishes that the 

Property is Blanton’s only rental property—making her an amateur 

lessor—and, she was not aware of the requirement to provide an 

itemized list of deductions from the security deposit. 

Blanton’s testimony is sufficient to rebut the presumption of bad 

faith under Section 92.109 of the Texas Property Code as well as 

existing common law. Therefore, Appellants cannot show that the 

evidence is insufficient. Because the facts are sufficient to support the 

trial court’s finding that the presumption of bad faith was successfully 

rebutted, this Court should affirm the trial court’s take nothing 

judgment.

 

28 Supp. RR 57.
10

III. THE TRIAL COURT DID NOT ERR IN EXCLUDING 

INADMISSIBLE EVIDENCE AND TESTIMONY

The Finlays claim that the trial court abused its discretion by

excluding exhibits as hearsay and not allowing Mr. Finlay to testify 

while Ms. Finlay was on the stand. However, Judge Mayfield did not err 

because her rulings were in accordance with the Texas Rules of 

Evidence. 

Pursuant to Texas Rule of Evidence 801, “hearsay is an out of 

court statement, made by someone not now testifying, that is being 

offered for the truth of the matter asserted.”

29 The Finlays offered into 

evidence bank statements, bank letters, deposit receipts, an invoice, 

and internet printouts.30 Counsel for Blanton objected to the offered 

exhibits as hearsay due to the exhibits containing out of court 

statements that were being offered for the truth of the matter asserted. 

The Finlays failed to provide an exemption or exception to Rule 801, 

thus making the offered evidence inadmissible hearsay. As a result, the 

trial court did not err when it excluded the hearsay evidence, as the 

trial court followed the Texas Rules of Evidence. 

 

29 Tex. R. Evid. 801.

30 See Appellants’ Brief at 17.
11

The Finlays further claim that the trial court abused its discretion 

by not allowing Mr. Finlay to testify while Ms. Finlay was on the stand.

However, the trial court was again following the Texas Rules of 

Evidence. Texas Rule of Evidence 611(a) states “[t]he court should 

exercise reasonable control over the mode and order of examining 

witnesses and presenting evidence so as to make those procedures 

effective for determining the truth and to avoid wasting time.”31

At the relevant time, Ms. Finlay was on the stand testifying about 

when her and her husband first incurred late fees for late rent 

payments.

32 Ms. Finlay said she thought it was May of 2012 but she 

was not sure.33 Mr. Finlay—from the gallery of the courtroom—stated, 

“I believe it was before August.”34 Judge Mayfield responded by stating:

Okay. Okay. Hang on. We do have a procedure we abide by, 

so I can’t have you speaking out there from the table and the 

record gets muddled when that happens. So, she’s on the 

stand right now so I need to hear from her only. Okay.35

The Finlays use the above statement by Judge Mayfield to assert that 

the trial court abused its discretion because it did not allow Mr. Finlay 

 

31 Tex. R. Evid. 611(a).

32 Supp. RR 42.

33 Supp. RR 42.

34 Supp. RR 43.

35 Supp. RR 43.
12

to testify at that time. But Judge Mayfield was merely exercising 

reasonable control over the mode of testimony. Because Mr. Finlay was 

not sworn in as a witness, the court exercised reasonable control by 

preventing his unsworn testimony on the record. The court also 

exercised reasonable control by preventing an unclear and confusing

trial record. 

As a result, the trial court did not err in not allowing Mr. Finlay to 

testify because the trial court followed the Texas Rules of Evidence.

IV. APPELLANTS DID NOT RAISE THE ISSUES OF 

UNTIMELY REPAIRS, FORGERY, OR ERRORS IN THE 

LEASE IN THE TRIAL COURT; THEREFORE, THESE 

ISSUES ARE IMPROPER ON APPEAL

The Finlays’ second, third, and fifth issues on appeal request this 

Court to litigate alleged defenses or causes of action not presented to 

the trial court. Specifically, the Finlays raise the issue of untimely 

repairs, forgery, and errors in the lease agreement for the first time on 

appeal. 

 The Texas Rules of Civil Procedure govern the guidelines for 

properly pleading a cause of action or defense.

36 A party wishing to 

assert a claim for relief must do so in either an original petition, 

 

36 Tex. R. Civ. P. 47; Tex. R. Civ. P. 94.
13

counterclaim, cross-claim, or third party claim which shall contain: (1) a 

short statement of the cause of action sufficient to give fair notice; (2) a 

statement that the damages sought are within the jurisdiction of the 

court; and, (3) a statement that the party seeks monetary relief within a 

specific monetary recovery category.37 Likewise, a party wishing to 

assert an affirmative defense must do so in accordance with Rule 94—

by affirmatively pleading “a matter that warrants avoidance or 

affirmative defense.”38

The Texas Supreme Court has long established that in order for 

the trial court to render a judgment, the basis of the judgment must 

have been pled in the trial court pursuant to the Texas Rules of Civil 

Procedure.39 Specifically, in Bank of Garvin v. Freeman, the Texas 

Supreme Court stated:

Should we allow a defeat of plaintiff’s recovery because of the 

existence of a defense, however sound in law, not pleaded by 

the defendant, the judgment of the court would then not 

conform to the pleadings. This would be wrong in principle, 

and in open conflict with the statute.40

 

37 Tex. R. Civ. P. 47.

38 Tex. R. Civ. P. 94. 

39 Phelps v. Connellee, 285 S.W. 1047, 1048 (Tex. 1926); Bank of Garvin v. Freeman, 

107 Tex. 523, 530 (Tex. 1915).

40 Bank of Garvin, at 529.
14

In Phelps v. Connellee, the Texas Supreme Court followed this 

reasoning when analyzing the appellate court’s decision to reserve on 

defensive matters not specifically pled in the trial court.41 The court 

held “it is elementary that an appellate court will not reverse a case, 

which should otherwise be affirmed, on an issue not pleaded in the trial 

court.”42

In Haden v. David J. Sacks, this Court agreed and declined to 

reverse a motion for summary judgment, relying on the same reasoning 

as the Texas Supreme Court.43 This Court held that issues not expressly 

presented to the trial court by written motion, answer or other response 

shall not be considered on appeal as grounds for reversal of a summary 

judgment motion.44

Here, the Finlays never asserted a cause of action, defense, or 

requested relief of any kind as to alleged untimely repairs, forgery, and 

errors in the lease agreement. Because the Finlays failed to properly 

plead these issues in the trial court, the issues are not preserved on 

appeal and cannot form the basis of a reversal of the trial court’s take 

 

41 Phelps v. Connellee, 285 S.W. 1047, 1048 (Tex. 1926)

42 Phelps, at 1048.

43 Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—Houston [1st 

Dist.] 2009, pet. denied).

44 Tex. R. Civ. P. 166a(c); Haden, at 512. 
15

nothing judgment. Appellants also assert a misapplication of Texas 

Property Code § 92.103; however, this provision was not at issue in the 

trial court, and therefore, is not properly before this Court for review.

PRAYER

For the reasons stated above, Appellee Elizabeth Blanton 

respectfully requests this Court affirm the take nothing judgment of the 

trial court and grant any such other and further relief to which she may 

be entitled. 

Respectfully submitted,

ROBERTS MARKEL WEINBERG BUTLER HAILEY PC

____________________________________

FRANK O. CARROLL III

TBA No. 24082785

MIA B. LORICK

TBA No. 24091415

2800 Post Oak Blvd, 57th Floor

Houston, TX 77056

Tel: (713) 840-1666

Fax: (713) 840-9404

fcarroll@rmwbhlaw.com

mlorick@rmwbhlaw.com

ATTORNEYS FOR APPELLEE

ELIZABETH BLANTON
16

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 i(3) of the Texas Rules of Appellate 

Procedure, I certify that the word count in this Appellee’s Brief is 3,114

words.

_________________________________

FRANK O. CARROLL III

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing 

instrument was served upon the parties listed below by facsimile, 

messenger, regular U.S. Mail, certified mail, return receipt requested 

and/or electronic service in accordance with the Texas Rules of 

Appellate Procedure on this the 16th day of April, 2015.

Magnolia Finlay and Andrew Finlay 

7542 Oakwood Canyon Drive

Cypress, Texas 77433

_____________________________________

FRANK O. CARROLL III