Adrienne Marco v. Kurt Kirkman

Summary

The Texas Court of Appeals, Third District, reviews a judgment holding landlord Adrienne Marco liable for bad-faith retention of former tenant Kurt Kirkman’s security deposit under Texas Property Code section 92.109. The court affirms the judgment in part, modifies the award of appellate attorney’s fees, and reverses and remands the portion concerning attorney’s fees for non-attorney staff. The appeal addresses the statutory bad-faith presumption, sufficiency of the evidence regarding property-damage deductions, and attorney’s fees.

Holdings

1. A tenant may prevail on a claim for bad-faith retention of a security deposit under Texas Property Code section 92.109(a) without establishing the statutory presumption in section 92.109(d). The presumption is one means of proving bad faith, but it is not the exclusive means.
2. The evidence was legally and factually sufficient to support the finding that Marco acted in bad faith by intending to deprive Kirkman of a lawfully due refund.
3. The evidence was legally and factually sufficient to support the finding that Marco failed to prove that retention of any portion of the security deposit was reasonable.
4. The evidence was legally insufficient to support the award of attorney's fees for non-attorney staff because Kirkman presented no evidence of the staff members' qualifications or that they performed substantive legal work under an attorney's direction and supervision.
5. The evidence sufficiently supported the amount of appellate attorney's fees, but the award had to be expressly conditioned on Kirkman's ultimate success on appeal.

Questions Presented

1. Whether a tenant must establish the statutory presumption of bad faith under Texas Property Code section 92.109(d) to prevail on a bad-faith-retention claim under section 92.109(a).
2. Whether the evidence was legally and factually sufficient to support the finding that Marco acted in bad faith.
3. Whether the evidence was legally and factually sufficient to support the finding that Marco failed to prove that retention of the security deposit was reasonable.
4. Whether the evidence was legally sufficient to support the award of attorney's fees for non-attorney staff.
5. Whether the evidence supported the award of appellate attorney's fees and whether that award had to be expressly conditioned on Kirkman's success on appeal.

Disposition

reversed_and_remanded