Affirmed and Memorandum Opinion filed July 2, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00033-CV

PATRICIA MARTIN, Appellant

V.

GREGG BRINKLEY AND SARAH BRINKLEY, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2009-40136

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

In this appeal from the judgment rendered after a nonjury trial, a landlord 

seeks reversal of the trial court’s judgment against her on her tenants’ claims for 

failure to repair the premises and for bad-faith retention of their security deposit. 

She contends that the tenants’ failure-to-repair claim is barred by res judicata 

because it could have been litigated in the landlord’s unsuccessful forcible-detainer 

action. She also challenges the judgment on factual-sufficiency grounds. We 

conclude that the res judicata argument was not preserved in the trial court, and 
2

that the evidence is factually sufficient to support the trial court’s implied findings. 

We therefore affirm the trial court’s judgment.

I. BACKGROUND

This is the second lawsuit between landlord Patricia Martin and tenants 

Gregg and Sarah Brinkley arising from the Brinkleys’ one-year lease of a home

nearly six years ago. The Brinkleys rented the three-bedroom, two-bathroom home 

from October 2008 to October 2009 for $975 per month, and paid a security 

deposit of an additional $975. Martin’s own home was directly across the street 

from the rented property.

The problems began with the Brinkleys’ requests for repairs. In December 

2008, the Brinkleys informed Martin that one of the bathtubs was leaking. Several 

weeks passed. Although the lease permitted Martin to authorize anyone to enter 

the property without notice to make repairs or to document the property’s 

condition, Martin’s husband gave the Brinkleys written notification on January 26, 

2009 that he would be in the house working on the plumbing beginning the next 

day and for the remainder of the week, if necessary. The attempted repair was 

unsuccessful, and on or about February 20, 2009, Martin’s husband replaced the 

bathtub, but did not finish installing it. Also in February 2009, Gregg’s brother 

Charles and Charles’s wife and two children began staying with the Brinkleys. 

At the end of March 2009, Martin found that there was a dog in the 

Brinkleys’ backyard. She wrote the Brinkleys a “Final Notice [of] Violation of 

Lease” demanding immediate removal of the dog and payment of $25 for its 

presence. Martin also demanded that anyone not named in the lease vacate the 

property that weekend, or rent would go up by $350 on April 1st. The Brinkleys 

paid both amounts, and Martin accepted the payment. According to Gregg 

Brinkley, his brother’s family moved out at the beginning of April.
3

At around this time, Martin decided not to perform any work on the home 

when the Brinkleys were not there. On April 7, 2009, she left a note for the 

Brinkleys, “Re: work on Tub. Knocked on door numerous times and rang door 

bell. No one came to the door.” In an effort to have the repairs performed, the 

Brinkleys sent Martin a certified letter on April 16, 2009 stating that the leaking 

bathtub had now been unusable for nearly four months. The Brinkleys cited the 

provision of the Texas Property Code which permitted them to vacate the premises, 

recover damages, penalties, attorney’s fees, and costs. 

Martin reacted immediately. On the day she received the letter, Martin sent 

the Brinkleys a written notice of eviction and demanded that they pay May’s rent 

in cash by noon on April 20, 2009. Two days later, she wrote the Brinkleys a 

notice to vacate the premises by April 30, 2009. One week after that, she sent the 

Brinkleys a notice to vacate by May 31, 2009. And four days after that letter, 

Martin filed a forcible-detainer action (“the eviction suit”) in a Harris County 

justice court. The Brinkleys asserted a counterclaim for retaliation, which is also a 

defense to an eviction suit. The justice court rendered judgment denying Martin 

possession of the house, but awarding no other relief. Neither side appealed.

The following month, Martin wrote to the Brinkleys a half-dozen times with 

various demands and accusations. Among other things, she purported to raise the

rent by $500 per month per adult, asserted that the Brinkleys owed her $200 for 

damages to fence material that Martin had left in the Brinkleys’ backyard, and 

demanded first $315 then $500 as additional rent for Sarah’s sister, who had 

visited that month. In September 2009, Martin twice notified the Brinkleys in 

writing that their lease would terminate on October 31, 2009.

The Brinkleys vacated the premises on time, and two days later, Sarah 

Brinkley wrote to Martin, advising her of the Brinkleys’ forwarding address and 

enclosing the keys to the house. On December 4, 2009, Martin mailed a demand 
4

letter to the Brinkleys, threatening to sue if she were not paid $9,108 within ten 

days. Martin arrived at the figure by listing the cost to remedy a number of 

conditions on the leased premises, adding the amount that she considered was due 

to her as additional rent, and subtracting the Brinkleys’ $975 security deposit. 

The Brinkleys sued Martin for breach of contract and for violation of various 

statutes requiring a landlord (a) to make timely repairs, (b) to timely provide an 

accounting of charges against a security deposit and to return the remainder, and 

(c) to refrain from filing a retaliatory eviction suit against a tenant who makes a 

repair request. The case was tried without a jury, and the trial court granted 

judgment in the Brinkleys’ favor for $4,792.00, plus attorney’s fees of $12,039.25 

and conditional attorney’s fees in the event of an unsuccessful appeal. Both sides 

filed initial requests for findings of fact and conclusions of law, but the trial court 

issued none, and neither side pursued the issue by filing a notice of past due 

findings of fact and conclusions of law. Martin moved unsuccessfully for a new 

trial or for modification of the judgment, and now brings this appeal.

In both her motion for new trial and in her appellate brief, she acknowledged 

that the trial court did not render judgment on the Brinkleys’ retaliation claim, but 

instead awarded them the amount requested for their claims of failure to repair and 

bad-faith retention of their security deposit. Moreover, both sides submitted

proposed findings of fact and conclusions of law in which they agreed that the 

retaliation claim was litigated in the earlier eviction suit and that the Brinkleys are 

precluded from relitigating it. Consequently, the Brinkleys’ claims for failure to 

repair and for bad-faith retention of their security deposit are the only claims 

before us.
5

II. ISSUES PRESENTED

Martin presents three issues for review. In her first issue, she asserts that the 

Brinkleys’ failure-to-repair claim was a compulsory counterclaim that they were 

required to assert in the eviction suit, and that the claim is now jurisdictionally 

barred by res judicata. She contends in her second issue that the trial court erred in 

finding that she failed to adequately or timely perform repairs. In her third issue, 

Martin argues that trial court erred in finding that she wrongfully withheld the 

Brinkleys’ security deposit.

III. RES JUDICATA

Martin argues that res judicata deprived the trial court of jurisdiction over 

the Brinkleys’ claims for failure to repair. Res judicata, however, is not a 

jurisdictional matter, but an affirmative defense that must be affirmatively pleaded, 

see TEX. R. CIV. P. 94, or tried by consent. See In re R.J.P., 179 S.W.3d 181, 183 

n.1 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (plurality op.). The 

distinction between an affirmative defense and a jurisdictional deficiency is an 

important one, because a complaint that the trial court lacked subject-matter 

jurisdiction can be raised for the first time on appeal, whereas most other 

complaints must have been preserved in the trial court. Compare City of Houston 

v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (explaining that a trial 

court that acts without subject-matter jurisdiction “commits fundamental error that 

we may review for the first time on appeal”) with TEX. R. APP. P. 33.1(a) 

(providing that a timely request, objection, or motion is “a prerequisite to 

presenting a complaint for appellate review”).

Martin did not raise the defense of res judicata in her pleadings, but the 

record shows that the Brinkleys did not object at trial when Martin introduced 

evidence that in the forcible-detainer suit, the Brinkleys had filed a counterclaim 
6

for retaliation. Moreover, before the trial court rendered judgment in this case, 

both sides filed proposed findings of fact and conclusions of law asking the trial to 

conclude that the Brinkleys’ retaliation claim is barred because it previously was 

litigated. Thus, the question of whether the Brinkleys’ retaliation claim is barred 

was tried by consent, and the parties agree that the claim is barred. 

On appeal, however, Martin argues that a different claim is precluded. She 

contends that the Brinkleys’ statutory claim for failure to repair is barred because it 

could have been litigated in the forcible-detainer suit.1 She raised that argument 

for the first time in her motion for new trial or for modification of the judgment, 

and requested no findings of fact or conclusions of law on the issue. Thus, 

Martin’s contention that the Brinkleys’ failure-to-repair claim is barred by res 

judicata was neither pleaded nor tried by consent, and has not been preserved for 

appeal. See MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 135–37 

(Tex. 2014) (holding that an affirmative defense first raised in a post-verdict 

motion was not preserved, because affirmative defenses must be pleaded before 

trial or tried by consent); Monk v. Westgate Homeowners’ Ass’n, Inc., No. 14-07-

00886-CV, 2009 WL 2998985, at *3 (Tex. App.—Houston [14th Dist.] Aug. 11, 

2009, no pet.) (mem. op.) (“An affirmative defense that is not pleaded or proved, 

and on which findings are not obtained, is waived and cannot be preserved by 

raising the affirmative defense for the first time in a motion for new trial.”).

Because this complaint was not preserved in the trial court, we overrule this 

issue.

 

1 Although we do not reach the merits of this issue, Martin is incorrect. See TEX. PROP.

CODE ANN. § 92.335 (West 2014) (although retaliation is a defense available to the tenant in an 

eviction suit, “[o]ther judicial actions under this chapter may not be joined with an eviction suit 

or asserted as a defense or crossclaim in an eviction suit”). The Brinkleys’ claims of failure to 

repair and wrongful retention of a security deposition are “judicial actions under this chapter.” 

See id. §§ 92.051–.062 (failure to repair); id. §§ 92.101–.109 (wrongful retention of security 

deposit).
7

IV. EVIDENTIARY SUFFICIENCY

In Martin’s second and third issues, she challenges the trial court’s implied 

findings that she failed to adequately and timely repair the premises and that she 

retained the Brinkleys’ security deposit in bad faith. Martin does not identify the 

grounds on which she challenges these implied findings. With the exception of her 

request that we dismiss the failure-to-repair claim on jurisdictional grounds, the 

only relief she requests is that we reverse the trial court’s judgment and remand 

“any remaining claims involving the security deposit, damages and attorney’s fees 

and costs.”2 Because reversal and remand is the result to which she would be 

entitled if the evidence were factually insufficient to support the judgment, we 

construe her remaining issues as challenges to the factual sufficiency of the 

evidence. See Magana v. Citibank, N.A., 454 S.W.3d 667, 681 n.11 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied) (examining the appellants’ prayer for relief 

and concluding that they challenged the factual sufficiency of the evidence because 

they sought remand, which is the appropriate remedy when the evidence is 

factually insufficient). 

When a complete reporter’s record is filed, we review the trial court’s 

findings of fact for legal and factual sufficiency under the same standards we apply 

to jury verdicts. Green v. Alford, 274 S.W.3d 5, 23 (Tex. App.—Houston [14th 

Dist.] 2008, pet. denied) (op. on reh’g en banc) (citing Ortiz v. Jones, 917 S.W.2d 

770, 772 (Tex. 1996) (per curiam)). To analyze a factual-sufficiency challenge, we 

consider all of the evidence in a neutral light, and we will set aside a finding only if 

the evidence is so weak or the finding is so against the great weight and 

preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem. 

Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). The amount of 

 

2 Martin also asks that we remand her counterclaim, but she has not presented or briefed 

that issue.
8

evidence needed to affirm is far less than the amount required to reverse a 

judgment. Farmers Tex. Cnty. Mut. Ins. Co. v. Pagan, 453 S.W.3d 454, 466 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.) (citing GTE Mobilnet of S. Tex. v. 

Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. 

denied)). The factfinder “is the exclusive judge of the facts proved, the credibility 

of the witnesses and the weight to be given to their testimony.” Benoit v. Wilson, 

150 Tex. 273, 281, 239 S.W.2d 792, 796 (1951). Because this court is not a 

factfinder, we may not pass upon the witnesses’ credibility or substitute our own

judgment for that of the factfinder, even if the evidence would clearly support a 

different result. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)

(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986) (op. on reh’g)).

A. Landlord’s Failure to Repair

A landlord is liable to a tenant if, within a reasonable time after receiving the 

tenant’s written notice to do so, the landlord fails to make a diligent effort to repair 

or remedy a condition that materially affects the physical health or safety of an 

ordinary tenant. See TEX. PROP. CODE ANN. § 92.056(b) (West 2014). There is a 

rebuttable presumption that seven days is a reasonable time. Id. § 92.056(d). 

Among other judicial remedies available for such failure to repair, the tenant may 

obtain judgment against the landlord for a civil penalty equal to one month’s rent 

plus $500, together with court costs and attorney’s fees. Id. §§ 92.056(e)(4), 

92.0563(a)(3), (5).

Although the Brinkleys complained of several instances of Martin’s failure 

to make repairs, a single example is sufficient to support the trial court’s implied 

finding that Martin violated the statute. Martin testified that she had known since 

December 2008 that the front bathtub in the house leaked. By January, water was 

puddling on the tile floor outside the bathroom. Martin began repairs on or about 

January 26, 2009, but the repairs were not completed. On April 16, 2009, the 
9

Brinkleys sent Martin a certified letter stating that it had been nearly four months 

since their initial complaint, and the condition still had not been repaired. 

Although Martin admitted at trial that this “create[d] a health and safety risk,” she 

testified that she had decided even before receiving the letter that she and her 

husband “were not going to go back into the house.” Martin acknowledged that 

the repairs were not completed even by the end of the Brinkleys’ tenancy on 

October 31, 2009. 

Martin argues that she was not obliged to repair the property because (1) she 

had overheard a verbal threat by an unknown person, (2) “there were numerous 

parties who recognized that guns were an issue at the leasehold,” and 

(3) “[a]nonymous people resided at the household for weeks on end.” 

Regarding the alleged verbal threat, Martin testified that around the same 

time that she received the Brinkleys’ certified letter in April 2009, she and her 

husband were working on the fence, “and these two guys – we could hear them 

talking loudly and saying – they called us ‘that white man’ and whatever, that they 

were going to kill him if he goes back into the house.” Martin admitted that the 

speaker was not one of the Brinkleys, and she has “no idea who these men were.” 

She testified that she told Gregg Brinkley about it, and he said, “don’t worry about 

it.” Gregg, however, gave a different version of that conversation. He testified 

that Martin told him “that there was people in the house being very disrespectful 

and cussing at her, and I told her there was no one in the house. She said, ‘Yes, 

there is. I can hear them from outside.’” Gregg responded, “If there’s anybody in 

the house, call the police. Go inside. Find out if somebody is in there because if 

somebody is in my house, they shouldn’t be there.” He stated that by June or July 

2009, Martin’s husband had “claimed that he was scared” and had stopped coming 

to the house, but the Martins never explained why. According to Gregg, the 

Martins “said they didn’t like the music. . . . We listen to a lot of hip-hop rap stuff. 
10

They cuss, they say all kinds of stuff; but it’s music.” Reviewing the conflicting 

evidence under the applicable standard of review, we must presume that the trial 

court did not find Martin’s version of events to be credible.

Martin’s argument regarding guns consists of a single sentence that is not 

supported by the record. She states in her brief, “The testimony of Ms. Brinkley 

establishes that there were numerous parties who recognized that guns were an 

issue at the leasehold.” There is no such testimony in the record. 

Finally, Martin’s assertion about “anonymous people” living in the house “in 

violation of the lease” is not supported by the record. The Brinkleys and their two 

children lived at the house, and from February 2009 to the beginning of April 

2009, Gregg’s brother Charles resided with them, accompanied by his own wife 

and two children. The extended family were not “anonymous”; Martin admitted 

that she learned that Charles and his family were staying at the house on or about 

February 20, 2009, and that when Martin’s husband replaced a bathtub in the house 

that month, Charles helped him move the old bathtub. Moreover, Martin 

responded to the presence of the extended family with a modification to the lease. 

On March 29, 2009, Martin wrote to the Brinkleys, “All people not on the lease 

will leave this weekend or rent goes up by $350.00 per month on April 1st.” It is 

undisputed that the Brinkleys paid Martin the additional $350, and that Martin 

accepted it. Gregg testified that his brother’s family moved out “at the very 

beginning of April.” We presume that the trial court credited this evidence.

After reviewing the entire record in a neutral light, we conclude that the 

evidence is factually sufficient to support the trial court’ implied finding that 

Martin violated section 92.056 of the Texas Property Code by failing to make 

diligent efforts to repair a condition that materially affected the physical health or 

safety of an ordinary tenant. We overrule this issue.
11

B. Landlord’s Bad-Faith Retention of Security Deposit

A landlord who retains a security deposit in bad faith is liable to the tenant in 

the amount of $100 plus three times the amount of the security deposit that was 

wrongfully withheld, together with the tenant’s reasonable attorney’s fees to 

recover the deposit. Id. § 92.109(a). When a tenant sues a landlord for bad-faith

retention of the tenant’s security deposit, the landlord bears the burden to prove 

that retaining any portion of the security deposit was reasonable. Id. § 92.109(c). 

A landlord is presumed to act in bad faith if the landlord fails either to refund the 

tenant’s security deposit or to provide a written description and itemization of 

deductions from the security deposit by the thirtieth day after the tenant surrenders 

possession. Id. § 92.109(d). 

Here, Martin did not return the security deposit or provide an itemized 

accounting within thirty days after the Brinkleys surrendered the premises. 

Although this gives rise to a presumption that Martin acted in bad faith, the implied 

finding of bad faith is independently supported by abundant evidence. Before 

analyzing Martin’s arguments further, we will mention just a couple of illustrative 

examples.3

In her accounting of the charges applied against the Brinkleys’ security 

deposit, Martin charged the Brinkleys an additional month’s rent for the stated 

 

3 When an appellate court determines that the evidence is factually sufficient to support 

the trial court’s judgment, the reviewing court is not required to detail the evidence that supports 

that conclusion. Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 794 (Tex. 1994) (sub. op.) 

(explaining that the detailed review required when the reviewing court reverses on factualinsufficiency grounds is not required when the reviewing court affirms). The single exception is 

that when a party makes a factual-sufficiency challenge to the amount of exemplary damages 

awarded, the appellate court must detail the relevant evidence and explain why it does or does

not support the amount awarded. See In re A.B., 437 S.W.3d 498, 503–04 (Tex. 2014) 

(explaining why a challenge to the amount of exemplary damages awarded is the sole exception 

to this rule, and declining to make a second exception for factual-sufficiency challenges to the 

termination of parental rights).
12

reason that “[t]he house was not made accessible to show to possible renters the 

last month of the lease.” Under the lease, however, the Brinkleys could not have 

prevented Martin from showing the property. The lease provides, “Before 

accessing the Property, Landlord . . . will attempt to first contact Tenant, but may 

enter the Property at reasonable times without notice to make repairs or to show 

the Property to prospective tenants . . . .” Moreover, Martin admitted at trial that 

she never discussed showing the property with the Brinkleys, but simply decided, 

“I was going to wait until they left.” There was no basis whatsoever for Martin to 

charge the Brinkleys for her own unilateral decision to delay showing the house.

Martin also stated that she was charging the Brinkleys $6,000 because they 

“[c]ontinued to allow adults not on the lease [to] live in the house for the months of 

December (2 adults), January (2 adults), February (2 adults), March (2 adults), 

May (2 adults), June (2 adults) and July 1 adults [sic]. $500/adult. Total = 

$6000.”4 The Brinkleys testified that although members of their families visited, 

the only time that others lived with them at the house was the brief period when the 

Charles Brinkley family resided with them. The record establishes that Martin 

already had demanded additional rent for their presence, and she admits that the 

Brinkleys paid her. As for Martin’s belief that people resided with the Brinkleys at 

any other time, Martin admitted that she did not see anyone else sleep there and 

that it was possible that the people she saw were not sleeping there. 

As for the remaining charges, Martin admits on appeal that “[t]here was a 

substantial amount of dispute during the trial as to the extent of repairs needed.” 

Our review of the record reveals that there was conflicting testimony about the 

need for nearly all of the repairs or cleaning for which Martin charged the 

 

4

This would total $6,500.
13

Brinkleys.

5

In accordance with the standard of review, we must presume that the 

trial court found the evidence favoring the Brinkleys to be credible. 

Martin nevertheless asserts that “[p]hotos taken by Defendant establish . . . a 

substantial amount of damage that existed at the hands of the tenants at the end of 

the lease period.” The evidence at trial included only two photographs by Martin 

that purported to show the condition in which the Brinkleys left the property. 

Martin agreed that the photographs “showed two areas of tile that could have been 

cleaned better, in [Martin’s] opinion.” Martin contends “that these photographs 

and related repair testimony establish a pattern/cost of repairs that warranted the 

withholding of the entire deposit and submission of an additional charge of 

approximately $1,000.00 to the [Brinkleys].” But, the amount that Martin in fact 

charged the Brinkleys is more than nine times larger than the amount that she now 

says is warranted. 

We also do not agree that the photographs and related testimony establish 

that Martin was justified in withholding the Brinkleys’ security deposit. One of the 

photographs shows a streak of dirt across two floor tiles. Of this photograph,

Martin testified, “I have no clue where this is.” The remaining photograph shows 

an even smaller area, and according to Martin, the area shown was located in the 

kitchen behind the refrigerator. When questioned further about her claim that the 

kitchen required extensive cleaning, Martin testified that she did not spend a lot of 

time cleaning the refrigerator, but that she spent a lot of time cleaning the stove. 

She retracted the latter statement, however, after she was impeached with her 

deposition testimony. When asked in her deposition to describe “the detailed 

cleaning in the kitchen” for which she charged the Brinkleys, Martin testified, 

 

5

There were two exceptions. The Brinkleys agreed with Martin’s charge of $16 to

replace light bulbs and $20 to replace window blinds. These amounts were not included in the 

judgment.
14

“The stove was left—it was left filthy. I can tell you it was horrible.” Opposing 

counsel then asked, “Isn’t it true that the Brinkleys brought their own stove and 

took their own stove with them when they left?” Martin responded, “I thought I 

had a stove in there first. No. Well, then, I guess not. Did I have a refrigerator 

then? I can’t remember. Well, it was dirty. I have pictures of it. It was filthy.” 

At trial, however, she further admitted that the two photographs of tile were the 

only photographs she produced in this lawsuit, and that she could not remember 

whether the Brinkleys brought their own stove and refrigerator. 

After reviewing the entire record, we cannot agree that the trial court went 

against the great weight and preponderance of the evidence in impliedly finding 

that Martin withheld the Brinkleys’ security deposit in bad faith. We accordingly 

overrule this issue.

V. CONCLUSION

Because the evidence is factually sufficient to support the trial court’s 

implied findings, and no other issues have been preserved for our review, we 

affirm the trial court’s judgment.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Brown, and Wise.