Roy Nash v. Garden City Apartments

Opinion issued June 9, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00369-CV

———————————

Roy Nash , Appellant

V.

Garden City

Apartments ,

Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 951400

MEMORANDUM OPINION

This is an

appeal from a forcible-detainer action to evict the defendant/appellant Roy

Nash from the premises of the plaintiff/appellee Garden City Apartments

(“Garden City”). We affirm.

BACKGROUND

Garden City Apartments is a

federally subsidized Section 8 housing project in Houston, Texas. The majority of the residents at Garden City

are adult females or children. Nash is a

male resident.

PK Management is Garden City’s

management company. Brenda Jones is PK

Management’s vice-president. The events

leading to Nash’s eviction from Garden Oaks started on September 16, 2009, when

Jones was at Garden City conducting community meetings with the residents to collect

specific information about their safety concerns and kick-off a crime-prevention

“1-800 Tips” program. Throughout the

day at these meetings, Jones received seven or eight complaints from different

residents about Nash behaving inappropriately towards children at the

property. Specifically, residence

complained about his “attempt[ing] to lure children into his apartment by

giving them quarters.”

In response to these complaints,

Jones and the area manager, Sonia White, [1] summoned Nash for a

meeting. Jones testified that Nash

immediately said, “I know why I am here.

I won’t do it anymore.” He then

explained that while he knew that many of the mothers were unhappy about him

trying to give their children money, they just did not understand that he was

trying to just be nice to the children.

Jones testified that during her

questioning of Nash, he “stated that [he] never paid for sex with a child, but

. . . hired people but they were all adults.”

When pressed for specifics, he stated that he had hired “residents” of Garden

City and explained “if I didn’t do it, how would they pay for their Pampers?” At that point, Jones made the decision to

terminate Nash’s lease and she thus ended the meeting. During cross-examination at trial, Jones

agreed that she did not know exactly “when Mr. Nash had sex with any of these

people.” Nash testified at trial that he

has never “hired any of [his] neighbors for sex” but that he hired prostitutes

20 years ago when his wife died, and that he had not had prostitutes in his

apartment or common areas since he signed his lease in 2008.

A. The lease

Nash’s lease introduced at trial had

an initial term of September 1, 2008 to August 31, 2009, and then “continu[es] for

successive terms of one month each unless automatically terminated as permitted

by paragraph 23 of the Agreement.” One

ground for termination under paragraph 23 is “criminal activity by a tenant . .

. . that threatens the health, safety, or right to peaceful enjoyment of the

premises by other residents . . . or that threatens the health, safety, or

right to peaceful enjoyment of their residences by persons residing in the

immediate vicinity of the premises.” The

lease can also be terminated “if the Landlord determines that the tenant, any

member of the tenant’s household, a guest or another person under the tenant’s

control has engaged in the criminal activity, regardless of whether [that

person] . . . has been arrested or convicted for such activity.”

B. The lease termination

On September 16, 2009, shortly

after their meeting, Jones sent to Nash a “Termination of Residency and Federal

Assistance Letter.” It cited, as the

reason for the termination:

Statement: I, Brenda Jones, Vice President

and witnessed by Sonya Ross, Area Manager, am making the following statement

regarding the Mr. Roy Nash admission of his involvement in Criminal

Prostitution. During a conversation with

Mr. Roy Nash concerning suspicious behavior by him toward children he denied

his involvement with any crime against children, but admitted to Sonya and me

of hiring residents for sexual favors for money. Management has made a decision to terminate

Mr. Nash for material noncompliance of his lease for his involvement in

criminal behavior at this property.

The statement was signed by both Brenda Jones and

Sonya Ross.

After again providing written notice to vacate

on September 29, 2009, Garden City filed an eviction suit.

C. The Trial Court Judgment

Following a bench trial, the court stated

that Garden City had met its burden and announced it was rendering judgment in

favor of Garden City. It signed a final

judgment on March 15, 2010.

ANALYSIS

Nash urges two grounds for reversal

of the trial court’s judgment: (1) Garden City produced no evidence that “Nash

breached the operative lease,” and (2) that the termination notice “lacked the

required specificity.”

A.

Breach of Operative Lease

In his first issue, Nash contends

that there is no competent evidence that Nash engaged in improper conduct

during the operative lease.

Specifically, he argues that (1) Jones’s testimony cannot establish a

breach of the operative lease because she testified that she did not know when Nash hired prostitutes, and (2)

Nash’s testimony cannot establish a breach of the operative lease because he

testified that he only hired prostitutes 20 years ago.

1. Standard of Review

In a bench trial, when no findings

of fact and conclusions of law are filed, the trial court’s judgment implies

all necessary findings of fact to support it. Roberson v. Robinson , 768 S.W.2d 280, 281 (Tex. 1989); Baytown State Bank v. Nimmons , 904

S.W.2d 902, 904 (Tex. App.—Houston [1st Dist.] 1995, writ denied). When the

implied findings of fact are supported by evidence, it is an appellate court’s

duty to uphold judgment on any theory of law applicable to the case. Point Lookout W., Inc. v. Whorton , 742

S.W.2d 277, 278 (Tex. 1987); Weng Enters.

v. Embassy World Travel, Inc. , 837 S.W.2d 217, 223 (Tex. App.—Houston [1st

Dist.] 1992, no writ). Implied findings may be challenged by factual and legal

sufficiency points. Roberson , 768 S.W.2d at 281 ; Giangrosso

v. Crosley , 840 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1992, no

writ).

The test for legal sufficiency is

“whether the evidence at trial would enable reasonable and fair-minded people

to reach the verdict under review.” City

of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit

favorable evidence if a reasonable factfinder could, and disregard contrary

evidence unless a reasonable factfinder could not. Id . So long as the evidence

falls within the zone of reasonable disagreement, we may not substitute our

judgment for that of the factfinder. Id . at 822. The factfinder is the sole judge of the

credibility of the witnesses and the weight to give their testimony. Id . at 819. Although we consider the

evidence in a light most favorable to the challenged findings, indulging every

reasonable inference that supports them, we may not disregard evidence that

allows only one inference. Id . at

822.

2. Discussion

At the close of the trial, the

court stated that its judgment rested in part on its credibility determinations

about the witnesses and testimony. On

appeal, Garden City similarly emphasizes the factfinder’s broad discretion in

this regard. Nash contends, however,

that “even if the trial court believed all of Jones’ testimony and none of

Nash’s testimony, Garden City still failed to provide legally sufficient

evidence that Nash violated the Lease.” Nash

also cites Joseph v. Beaumont Housing

Authority , 99 S.W.3d 765 (Tex. App.—Beaumont 2003, no pet.) for the

proposition that a “tenant in a residential lease may only be evicted for

conduct during the ‘operative lease.’”

Because the “only lease before the trial court was the Lease introduced

by Garden City, which became effective on September 1, 2008,” Nash insists that

“Garden City was required to provide legally sufficient evidence that Nash

committed a lease violation on or after September 1, 2008.” In sum, Nash argues that Garden City’s

failure to prove that Nash violated the lease — as well as its failure to prove the date of any alleged violation — renders the trial court’s judgment in favor of

Garden City unsupported by legally sufficient evidence. We disagree.

The trial court was presented with

sufficient evidence that Nash violated his lease by engaging in criminal

conduct while living at Garden City . Jones not only testified

that Nash admitted to paying for sex, but that he admitted to paying other residents for sex so that they would

have money to buy diapers for their children.

At trial, Nash denied ever paying residents for sex and testified instead

that he had hired prostitutes 20 years ago.

It was “within the finder of fact’s province to resolve [these]

conflicts in the evidence.” Ward v.

Ladner , 322 S.W.3d 692, 699 (Tex. App.—Tyler 2010, pet. denied); see also id. (“The finder of fact is

free to believe one witness and disbelieve another, and reviewing courts may

not impose their own opinions to the contrary.”).

We “must . . . indulge every reasonable

inference” supporting the trial court’s judgment. Busch

v. Hudson & Keyse, LLC , 312 S.W.3d 294, 299 (Tex. App.—Houston [14th

Dist.] 2010, no pet.). Nash argues that

Jones’s testimony left the trial court “forced to speculate” as to when Nash paid for sex, and that the

court “could not infer that Nash had in fact hired prostitutes during the

operative lease.” While Nash is correct

that Jones testified that she did not know exactly when Nash paid others to

perform sexual acts, the evidence that it was other Garden City residents that he paid supports the reasonable

inference that Nash paid for sex while residing at Garden City Apartments in

violation of his lease.

There is no evidence that Nash

lived at Garden City apartments before September 1, 2008 — the effective date on the lease admitted at

trial. Nonetheless, implicit in Nash’s

heavy reliance on Joseph v. Beaumont

Housing Authority and his argument

that Garden City “was required to provide legally sufficient evidence that Nash

committed a lease violation on or after September 1, 2008” is the argument that

if Nash engaged in criminal activity while living at Garden City but under an

earlier lease, that criminal activity could not support the trial court’s

eviction judgment. We do not read Joseph so broadly.

In Joseph , the Beaumont Housing Authority (“BHA”) sued an apartment

tenant for eviction based on unpaid rent.

99 S.W.3d at 766 . The justice court

granted the tenant possession of the property, but awarded BHA $600 in unpaid

rent. Id . BHA appealed to the

county court and, two days later, signed a new lease with the tenant. Id . During this new lease period, the county

court heard the appeal of the justice court judgment and granted BHA possession

of the premises. Id . On appeal, the Beaumont

Court of Appeals held that the tenant was entitled to possession of the

apartment under the new lease because “BHA did not amend its pleadings after

executing the new lease and no violation or breach under that lease was ever

alleged.” Id . Thus, the court

explained, at the time of trial, the tenant “was entitled to possession of the

premises under the operative lease.” Id .

Joseph is simply

inapplicable here, as Garden City did not execute a new lease with Nash after

suing to evict him. Nothing in Joseph or in the language of the lease

itself supports the argument that Garden City must prove exactly when Nash

engaged in criminal activity during his Garden City residency to support lease

termination. And to hold that Garden

City cannot terminate a lease based on criminal behavior it just discovered that

may have occurred under a prior lease would be nonsensical, as such a holding

would simply reward those who manage to conceal inappropriate or unlawful

behavior until the end of a renewable lease term. We decline to read Joseph so broadly.

Because there is legally sufficient

evidence to support the trial court’s conclusion that Nash breached his lease,

we overrule Nash’s first issue.

B.

Notice of Violation of Lease

In his second issue, Nash complains

that Garden City’s termination notice failed to state the grounds for eviction

with sufficient specificity to enable Nash to prepare a defense. Specifically, Nash argues that the notice’s

failure to allege specific dates, times, places and person’s involved renders

the notice fatally defective. If we

conclude the notice was deficient, Nash further urges us to overrule prior

precedent subjecting such failure to give adequate notice to harm analysis or,

alternatively, to conclude in this case that Nash was harmed. Garden City responds that its notice was

sufficiently detailed and that, in any event, Nash waived this complaint by not

raising in the trial court. We agree

with Garden City.

1. Applicable law

Title 24, section 247.4 of the Code

of Federal Regulations sets forth certain lease termination notice requirements

applicable to Section 8 housing.

Relevant here: “The landlord’s determination to terminate the tenancy

shall be in writing and shall . . . state the reasons for the landlord’s action

with enough specificity so as to enable the tenant to prepare a defense.” 24

C.F.R. § 247.4(a)(2). Unless new grounds for eviction come to light

after the termination notice is sent, the landlord is limited to reliance only

“on grounds which were set forth in the termination notice” in any judicial

eviction proceeding. 24 C.F.R. §

247.6 (b).

2. Discussion

Garden City’s notice of lease

termination states (1) the individual allegedly engaged in wrongdoing (Nash),

(2) the objectionable behavior (hiring residents for sexual favors), (3) when

and how Garden City became aware of the objectionable behavior (the meeting

with Nash on September 16, 2009), and (4) the names of the witnesses to Nash’s

admission forming the basis of the eviction.

This notice provided much more detail than the notices found

insufficient in the two cases Nash claims are analogous. Nealy

v. Southlawn Palms Apartments , 196 S.W.3d 386, 391 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (notice stated only “[o]wner desired possession” and

“[u]n-desirable tenant behavior”); Moon

v. Spring Creek Apartments , 11 S.W.3d 427, 433 (Tex. App.—Texarkana 2000,

no pet.) (notice stated that tenant’s 3-year old grandson “endanger[ed the]

welfare of other tenants”). Nash does not articulate in his brief how

Garden City’s notice was insufficient to apprise him of the necessary facts to

prepare his defense. And, while Nash’s

attorney successfully objected to the introduction of evidence about wrongdoing

outside the scope of the termination letter at trial, [2] Nash never brought to the

trial court’s attention any objection about the actual form of the notice, or

that the notice was too vague to adequately put him on notice of the ground

under which the court found lease termination proper, i.e. , Nash’s hiring other residents to engage in sexual activity. Tex.

R. App. P . 33.1. We overrule

Nash’s second issue.

CONCLUSION

We

affirm the trial court’s judgment.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

[1] White is identified elsewhere in the

record as “Sonia Ross.”

[2]

Nash’s attorney successfully

argued to exclude evidence related to allegations about Nash possessing child

pornography in his apartment, and testimony elaborating on the attempts at

luring children into his apartment, because these grounds were not included in

Garden City’s termination notice.