Lowe v. Townview Watersong, L.L.C.
Lowe v. Townview Watersong, L.L.C.
Opinion of the Court
OPINION
Opinion by
In this lawsuit involving an apartment rental security deposit, Sherrie Lowe challenges the trial court’s take-nothing summary judgment in her lawsuit against Townview Watersong, L.L.C., Watersong Apartments, L.P., and QS Watersong, L.L.C. Lowe sued appellees alleging they failed to return her security deposit after the apartment she desired to lease was not available on the date promised. In two issues, Lowe asserts the trial court erred in granting summary judgment because
According to the summary judgment evidence, Lowe visited an apartment complex intending to rent an apartment. During the visit, she tendered money orders for the application fee and security deposit. Three days later, ownership of the apartment complex was transferred to‘appel-lees. When Lowe returned the following week to move in, she was informed the apartment was not ready. According to Lowe, she requested the return of her security deposit, but the manager wanted to show her other available properties. Lowe claims the manager stated that if she did not like the other properties, her security deposit would be returned. Lowe alleges that, although she rejected the other properties, her security deposit was never returned. She thereafter filed a lawsuit against several entities that are not parties to this appeal.
Before we address the merits of Lowe’s issues, we first note some procedural facts that are relevant to our analysis and disposition- of this case. Appellees’ motion for summary judgment rested on both traditional and no-evidence grounds. The traditional motion for summary judgment asserted the affirmative defense of limitations with respect to Lowe’s claims for “bad faith” and misrepresentation. The no-evidence portion of appellees’ summary judgment motion challenged each element of Lowe’s four causes of action, including the “bad faith” and misrepresentation claims.
With respect to their traditional motion for summary judgment, appellees had the burden to demonstrate no genuine issues of material fact existed and that they were entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt., Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The no-evidence summary judgment, however, required Lowe to present sufficient evidence to raise a genuine issue of fact on each challenged element of her four claims. See Gen. Mills Rest. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Because the trial court granted appellees’ summary judgment without specifying the grounds on which it was based, Lowe must establish that each summary judgment ground alleged by ap-pellees was insufficient to support the trial court’s judgment. See Star-Telegram, Inc., v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
Notwithstanding the above requirements, Lowe’s appellate brief does not appear to address the no-evidence portion of appellees’ summary judgment motion. Her first issue is limited to challenging the limitation's defense as a bar to her misrepresentation and- “bad faith” claims. Likewise, Lowe’s second issue focuses on
Nevertheless, to the extent that Lowe’s argument under her second point of error may be construed as attacking the no-evidence summary judgment grounds, we have reviewed the summary judgment evidence Lowe presented in response to appellees’ motion.
Lastly, in her third issue, Lowe complains about the trial court’s denial of her motion for new trial. We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. See Henry v. Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex.App.-Dallas 2003, pet. denied.). Under this standard, we may not overrule the trial comet’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Lowe argues the trial court erred in denying her motion for new trial because the denial contradicts a previous order signed on July 7, 2003 in which the trial court granted a continuance until November 10, 2003.
. We affirmed the trial court's summary judgment with respect to two of these parties in Sherrie Lowe v. Watersong Villas Apartments and BNC Real Estate, No.05-03-00858-CV, 2004 WL 737757 (Tex.App.-Dallas April 7, 2004, no pet.). The trial court granted summary judgment to the remaining party, FSF Las Cortes Associates L.P., on August 15, 2003. Lowe has not challenged this ruling.
. Liberally construing Lowe’s brief, we conclude that Lowe may have intended her second issue to challenge the no-evidence portion of appellees' summary judgment motion but misunderstood and misstated the burden of proof applicable to this portion of appel-lees’ summary judgment motion.
. Lowe mistakenly construes this order as granting a motion for new trial. Although there is a clerical error in the order stating the court "hereby grants Defendants’ Motion for New Trial,” the balance of the order makes clear that it granted a continuance in response to Defendants’ Motion for Continu-
Reference
- Full Case Name
- Sherrie LOWE v. TOWNVIEW WATERSONG, L.L.C., Watersong Apartments, L.P., and QS Watersong, L.L.C.
- Cited By
- 9 cases
- Status
- Published