# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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- CV Enjoli WYNN , Appellant

v. Silver Oaks Apartments, SILVER OAKS APARTMENTS, LTD. , Appellee From the County Court a t Law No. 10, Bexar County, Texas Trial Court No. 380959 Honorable David J. Rodriguez, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice Delivered and Filed: January 8, 201 4
AFFIRMED Silver Oaks Apartments, Ltd. sued a former tenant , Enjoli Wynn , for u npaid rent and attorney’s fees. The trial court held a bench trial , and rendered judgment against Wynn for $3,185.00 in unpaid rent and $750.00 in attorney’s fees. No findings of fact were r equested. On appeal, Wynn argues the trial court erred in calcul at ing the amount of unpaid rent . Wynn further
argues the trial court erred in failing to find that Silver Oaks Apartments violated a statute pertaining to a landlord’s duty to rep air or remedy conditions and a statute prohibiting retaliation04

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- CV by a landlord ag ainst a tenant

. We overrule all of Wynn’s issues and affirm the trial court’s judgment

. S TANDARD OF R EVIEW When no findings of fact are requested , the trial court’s judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990); Interest of W.E.R. , 669 S.W.2d 716, 717 (Tex. 1984). In the absence of express findings of fact, it is impl i ed that the trial court made all necessary findings to support its judgment. Worford , 801 S.W.2d at 109 ; W.E.R. , 669 S.W.2d at 717. If a re porter’s record is filed, i mplied findings may be challenged for legal and factual sufficiency. Holt Atherton Indus.,
Inc. v. Heine , 835 S.W.2d 80, 83 (Tex. 1992); Roberson v. Robinson , 768 S.W.2d 280, 281 (Tex. 1989). In reviewing the legal sufficiency of implied findings, we credit favorable evidence that a reasonable fact

- finder could and disregard contrary evidence unless a reasonable fact

- finder could
not. See City of Keller v. Wilson , 168 S.W.3d 8 02, 827 (Tex. 2005); Ingham v. O’Block , 351 S.W.3d 96, 100 (Tex. App.

— San Antonio 2011, pet denied). I f there is more than a scintilla of evidence to support the finding, t he no

- evidence challenge fails. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3 d 78 9, 795 (Tex. 2002); Heine , 835 S.W.2d at 8 4

. In reviewing the factual sufficiency of implied findings, we consider all of the evidence in the record

. Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996); Flying J Inc. v. Meda, Inc. , 373 S.W.3d 680, 690

- 91 (Tex. App.

— San Antonio 2012, no pet.). We may overturn the trial court’s findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz , 917 S.W.2d at 772; see Flying J Inc. , 373 S.W.3d at 690

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C ALCULATING U NPAID R ENT In her first issue, Wynn argues the trial court erred in calculating the amount of unpaid rent

. We constru e this argument as a challenge to the legal and factual sufficiency of the evidence. In maki ng her argument, Wynn refers to documents outside of the record. However, in conducting our review, we consider only the evidence admitted at trial. At trial, a n assistant manager testified that Wynn owed Silver Oaks Apartment s $3,185.00 for unpaid rent. According to the assistant manager, Wynn, who was a month

- to

- month tenant, was obligated to pay $839.00 per month in rent. Wynn did not pay her rent for June, Ju ly, August, and September 2012; however, Wynn move d out in September and turned in her keys bef ore the end of the month

. Silver Oaks Apartments therefore prorat ed Wynn’s rent for September based on the date Wynn turned in her keys

. Although Wynn testified at trial, she did not controvert the assistant manager’s calculations of her unpaid rent. The t rial court rendered judgment in the

amoun t of $3,185.00 for unpaid rent. We conclude the evidence is legally and factually sufficient to support the trial court’s judgment for unpaid rent. Wynn’s first issue is overruled

. S ECTIONS 92.052 AND 92.056 In her second issue, Wynn argues the trial court erred by not find ing that Silver Oaks Apartments breached the implied warranty of habitability. The only applicable authority cited by Wynn is section 92.052 (a) of the Texas property code

. 1 See T EX
. P ROP
. C ODE A NN
. § 92.052 (a) (West 2007) (establishing a landlord’s duty to repair or remedy a condition)

. Section 92.052 (a) provides: A landlord shall make a diligent effort to repair or remedy a condition if: (1) the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid;

1 Wynn also cites two California cases

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(2) the tenant is not delinquent in the payment of rent at the time notice is given; and (3) the condition: (A) materially affects the physical health or safety of an ordinary tenant; or (B) arises from the landlord’ s failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.
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. § 92.052(a). Although not cited by Wynn, section 9 2 .056(b) provides: A landlord is liable to a tenant as provided by this subchapter if: (1) the tenant has given the landlord notice to repair or remedy a condition by giving that notice to the person to whom o r to the place where the tenant’ s rent is normally paid; (2) the condition materially affects the physical health or safety of an ordinary tenant; (3) the tenant has given the landlord a subsequent written notice to repair or remedy the condition after a reasonable time to repair or remedy the condition following the notice given under Subdivision (1) or the tenant has given the notice under Subdivision (1) by sending that notice by certified mail, return receipt requested, or by registered mail; (4) the landlord has had a reasonable time to repair or remedy the condition after t he landlord received the tenant’ s notice under Subdivision (1) and, if applicable, the tenant’ s subsequent notice under Subdivision (3); (5) the landlord has not made a diligent effort to repair or remedy the condition after t he landlord rec eived the tenant’ s notice under Subdivision (1) and, if applicable, the tenant’ s notice under Subdivision (3); and (6) the tenant was not delinquent in the payment of rent at the time any notice required by this subsection was given.
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. § 92.056 (b) (West 2007)

. A t trial , Wynn testified generally about problems she had with the apartment and her efforts to notify Silver Oaks Apartments of the se problems. Wynn , however, failed to establish the requirements set forth in section 92.056(b)

. Se e id. ; T EX
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. C ODE A NN
. § 92.05 3 (West 2007)

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( providing a tenant generally has the burden to enforce a right resulting from the landlord’s failure to repair or remedy a condition )

. Wynn’s second issue is overruled

. S ECTION 92.331 In her third issue, Wynn argues the trial court erred in failing to find that Silver Oaks Apartments retaliated ag ainst her as prohibited by section 92.331 of the Texas property c ode. See
T EX
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. C ODE A NN
. § 92.331 (West 2007) (prohibiting a landlord from retaliating against a tenant who exercises a right or remedy granted by law )

. Wynn , however, did not plead a claim under section 92.331

. Nor did she present evidence at trial establishing a claim under section 92.331

. Wynn’s t hird issue is overruled

. A TTORNEY ’ S F EES In her fourth issue, Wynn argues that, if she prevails on her other issues, the attorney’s fees award ed by the trial c ourt should be reversed . As previously explained , Wynn did not prevail on her other issues. Wynn’s fourth issue is overruled. C ONCLUSION The trial court’s judgment is affirmed. Karen Angelini, Justice

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