Dalia Lopez v. Camron R. Larochelle and Casey Butler

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00467-CV
___________________________

DALIA LOPEZ, Appellant

V.

CAMRON R. LAROCHELLE AND CASEY BUTLER, Appellees

On Appeal from County Court at Law No. 2
Denton County, Texas
Trial Court No. CV-2023-02962

Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION

I. INTRODUCTION

Appellant Dalia Lopez leased a residence in Little Elm to Appellees Camron R.

Larochelle and Casey Butler. After a dispute arose between the parties concerning

whether Larochelle and Butler had moved out of the residence during the term of the

lease and whether they were entitled to the return of their security deposit, Larochelle

and Butler sued Lopez for violating Section 92.109 of the Texas Property Code, and

Lopez filed a counterclaim for breach of contract. See Tex. Prop. Code Ann. § 92.109.

Larochelle and Butler later moved for a traditional summary judgment based on their

affirmative claim and a no-evidence motion for summary judgment based on Lopez’s

counterclaim. The trial court ultimately granted Larochelle and Butler’s traditional

and no-evidence motions for summary judgment; awarded them $5,200 in damages,

$350 in costs, and $12,462.50 in attorney’s fees; and entered a take-nothing judgment

on Lopez’s counterclaim.

In three issues on appeal, Lopez argues that the trial court erred by (1) granting

Larochelle and Butler’s no-evidence motion for summary judgment, (2) granting

Larochelle and Butler’s traditional motion for summary judgment, and (3) awarding

attorney’s fees to Larochelle and Butler. We will affirm the trial court’s grant of the

no-evidence motion for summary judgment with respect to two aspects of Lopez’s

breach-of-contract counterclaim—her claim that Larochelle and Butler breached the

lease by failing to report health and safety issues to her and her claim that they

2
breached the lease by moving without giving her written notice—but we will reverse

the trial court’s grant of the no-evidence motion with respect to the third aspect of

Lopez’s breach-of-contract counterclaim—her claim that they breached the lease by

failing to pay rent. We will also reverse the trial court’s grant of Larochelle and

Butler’s traditional motion for summary judgment and its award of attorney’s fees.

Accordingly, we will affirm in part and reverse and remand in part.

II. BACKGROUND

A. Factual Background

In December 2021, Larochelle, Butler, and Lopez signed a residential lease

agreement (the Lease). Under the terms of the Lease, Larochelle and Butler agreed to

lease a residence from Lopez in Little Elm (the Property). The term of the Lease

began on January 1, 2022, and ended on December 31, 2023. The monthly rent

required by the Lease was $1,750. The Lease provided that if Larochelle and Butler

vacated the Property before the term of the Lease ended, they would be liable for the

balance of the rent for the remainder of the Lease’s term. It also provided that

Larochelle and Butler were to notify Lopez in advance if they were to be away from

the Property for fifteen or more consecutive days. Pursuant to Clause 11 of the

Lease, Larochelle and Butler agreed to notify Lopez of any defects or dangerous

conditions in and about the Property of which they became aware.

The Lease also contained the following provision relating to a security deposit:

3
By signing this Agreement, Tenant will pay to Landlord the sum of
$1,750.00 as a security deposit.[1] Tenant may not, without Landlord’s
written consent, apply this security deposit to the last month’s rent or to
any other sum due under this Agreement. Only 50% of deposit is
reimbursable. Within 6 weeks after Tenant has vacated the premises,
returned keys, and provided Landlord with a forwarding address,
Landlord will give Tenant an itemized written statement of the reason
for, and the dollar amount of any of the security deposit retained by
Landlord along with a check for any deposit balance. Other 50% is
retained by owner to de[e]p clean, repaint[,] and for other necessary
repairs to make house ready for the next tenant. Note: to make sure
you will receive the 50% of your deposit back, premises should be
delivered to landlord in good shape, tenant should remove any unwanted
items and furniture, remove all trash[,] and leave the premises . . . clean.

On June 29, 2023, Lopez and Larochelle exchanged a series of text messages

over a six-minute span. It began with Lopez sending a text message to Larochelle

stating, “I stop[ped] by the house today to check the septic tank[,] and [it] looks like

you guys move[d] out! Please confirm.” Larochelle responded, “We still have

personal property in the house.” Lopez replied, “[C]all me.” Larochelle responded,

“Busy.” Lopez messaged, “[Y]ou are moving[?] [C]onfirm date and time.”

Larochelle answered, “I am supposed to deal with Mrs. Fincher[2] now. We are not

moved out[;] nothing has changed at this point.” Lopez replied, “[I] will take

1
In affidavits attached to their amended motions for summary judgment,
Larochelle and Butler stated, “[W]e paid a $1,750.00 security deposit at the initiation
of [the Lease].”
2
From what we can glean from the record, Alexandra Fincher was Lopez’s
agent who had dealings with the Property.

4
possession of the house on 7/01/2023[.] [Y]ou move[d] without notice[;] you [are]

still liable for [the] remaining rent until [the Lease] expire[s].”

In their affidavits, Larochelle and Butler characterized this exchange as

occurring in the midst of their “moving some of [their] possessions to a home [they]

had just recently purchased, which was not yet ready for occupancy.” They stated that

Lopez “incorrectly believed that [they] were moving out early or had already vacated

the premises[ ] and subsequently terminated [their] rights to possession immediately.”

They also indicated that Lopez had locked them out of the Property without notice,

which prevented them from cleaning the Property.

B. Procedural Background

In August 2023, Larochelle and Butler filed a lawsuit against Lopez. They

claimed that Lopez had violated Section 92.109 of the Texas Property Code by failing

to return their security deposit.3 Larochelle and Butler asked that they be awarded

$5,250 in liquidated damages, $100 in economic damages, and their reasonable

attorney’s fees and costs.

Lopez answered the lawsuit and filed a breach-of-contract counterclaim. Her

counterclaim alleged that Larochelle and Butler had breached the contract by:

3
Larochelle and Butler’s petition included a heading labeled “Breach of
Contract.” The substantive section following that heading, however, referred to
Lopez’s failure to return the security deposit and referenced a purported violation of
Property Code Section 92.109. The parties’ respective briefing treats Larochelle and
Butler’s claim as one based on a purported violation of Section 92.109, not as one
based on a breach of contract, and we will treat it the same.

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(1) failing to report health and safety issues to her as required by Clause 11 of the

Lease, (2) moving without giving her written notice, and (3) failing to pay rent.

Larochelle and Butler filed a combined no-evidence motion for summary

judgment and traditional motion for summary judgment. In that combined motion,

Larochelle and Butler argued that (1) there was no evidence to support certain

affirmative defenses raised by Lopez, (2) there was no evidence supporting Lopez’s

counterclaim, (3) Lopez had no evidence to rebut their claims, (4) they were entitled

to three times their security deposit, and (5) they were entitled to their attorney’s fees.

Lopez responded to the motions pro se. Attached as exhibits to Lopez’s

response were her counterclaim; certain pictures of the Property; affidavits from

Lopez and others; a copy of an August 11, 2023 letter she sent to Larochelle and

Butler containing an itemized list of deductions pertaining to their security deposit; a

copy of a warranty deed relating to other real property purchased by Larochelle in

Denton County; and a spreadsheet purporting to reflect certain expenses “incurred by

[Lopez] to remove junk from abandoned house.”

Larochelle and Butler later amended their combined no-evidence and

traditional motion for summary judgment. In their amended combined motion,

Larochelle and Butler advanced the same arguments contained in their original

combined motion—that (1) there was no evidence to support certain affirmative

defenses raised by Lopez, (2) there was no evidence supporting Lopez’s counterclaim,

(3) Lopez had no evidence to rebut their claims, (4) they were entitled to three times

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their security deposit, and (5) they were entitled to their attorney’s fees. Larochelle

and Butler’s amended motion was set for hearing on June 27, 2024.

On June 25, 2024—two days before the hearing on the amended motion—

Lopez filed her amended pro se response. Larochelle and Butler later moved to strike

Lopez’s amended response because it was untimely. See Tex. R. Civ. P. 166a(c)

(“Except on leave of court, the adverse party, not later than seven days prior to the

day of hearing may file and serve opposing affidavits or other written response.”).

The trial court granted Larochelle and Butler’s motion to strike, and it struck Lopez’s

amended response.

Meanwhile, Larochelle and Butler filed certain objections to the summary-

judgment evidence that was attached to Lopez’s original response. More specifically,

they objected to certain portions of the affidavits attached to her response and to the

pictures attached to her response. At the hearing on Larochelle and Butler’s amended

combined motion for summary judgment, their counsel raised the objections to

Lopez’s summary-judgment evidence, and the trial court stated that it was granting the

objections.4

4
No written order was signed by the trial court regarding Larochelle and
Butler’s objections. But the trial court’s oral ruling at the hearing was sufficient. See
FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022)
(“A trial court’s on-the-record, unequivocal oral ruling on an objection to
summary[-]judgment evidence qualifies as a ruling under Texas Rule of Appellate
Procedure 33.1, regardless of whether it is reduced to writing.”).

7
Following the hearing, the trial court signed an order granting Larochelle and

Butler’s no-evidence motion for summary judgment and ordering that Lopez take

nothing from them on her counterclaim. The trial court also signed an order granting

Larochelle and Butler’s traditional motion for summary judgment. In that order, the

trial court awarded Larochelle and Butler $5,200 in “actual damages,” $350 in costs,

and $5,902 in attorney’s fees.

Lopez filed a motion for reconsideration, arguing, among other things, that the

trial court had erred by granting Larochelle and Butler’s no-evidence motion for

summary judgment, had erred by granting Larochelle and Butler’s traditional motion

for summary judgment, and had erred by awarding $5,902 in attorney’s fees.5

Larochelle and Butler responded to the motion for reconsideration, and the trial court

conducted a hearing regarding the motion. Following the hearing, the trial court

signed an order in which it granted the motion with respect to the award of attorney’s

fees. In the order, the trial court vacated its previous award of attorney’s fees. The

trial court denied the motion for reconsideration in all other respects.

On September 10, 2024, Larochelle and Butler filed a motion for summary

judgment on their attorney’s fees. On September 16, 2024, the trial court signed an

order granting Larochelle and Butler’s motion for summary judgment on their

5
Lopez had obtained counsel when she moved for reconsideration; the motion
was drafted and filed by her counsel.

8
attorney’s fees.6 That order, however, had a blank space for the amount of the fees

awarded by the trial court. On September 30, 2024, the trial court signed a nunc pro

tunc order that awarded Larochelle and Butler attorney’s fees of $12,462.50 plus

conditional appellate attorney’s fees. This appeal followed.

III. DISCUSSION

A. Lopez’s Complaint Regarding the Trial Court’s Grant of the Traditional
Motion for Summary Judgment

In her second issue, Lopez argues that the trial court erred by granting

Larochelle and Butler’s traditional motion for summary judgment.7

1. Standard of Review

We review a summary judgment de novo. Weekley Homes, LLC v. Paniagua,

691 S.W.3d 911, 915 (Tex. 2024); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862

(Tex. 2010). With respect to a traditional motion for summary judgment, the movant

has the burden to demonstrate that no genuine issue of material fact exists and that it

is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). A plaintiff is entitled to summary

No hearing was conducted on Larochelle and Butler’s motion for summary
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judgment on their attorney’s fees.
7
In her opening appellate brief, Lopez repeatedly references the “no-evidence
summary judgment” when discussing her second issue, although it appears from the
context of her argument that she means to discuss the traditional motion for summary
judgment. In her reply brief, Lopez clarifies that her second issue concerns the
traditional motion for summary judgment, noting that she “unintentionally substituted
‘no-evidence’ for ‘traditional’” in this part of her opening brief.

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judgment on a cause of action if he or she conclusively proves all essential elements of

the claim. See Tex. R. Civ. P. 166a(a), (c); Compass Bank v. Durant, 516 S.W.3d 557, 565

(Tex. App.—Fort Worth 2017, pet. denied).

When reviewing a traditional motion for summary judgment, we consider the

evidence presented in the light most favorable to the nonmovant—here, Lopez.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

We credit evidence favorable to the nonmovant if reasonable jurors could, and we

disregard evidence contrary to the nonmovant unless reasonable jurors could not. Id.

We indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

2. Applicable Law

Chapter 92 of the Texas Property Code, Subchapter C, governs the rights of

landlords and tenants concerning security deposits applicable to residential leases. See

Tex. Prop. Code Ann. §§ 92.101–.111; see also Robinson v. Bontha, No. 01-19-00777-CV,

2020 WL 7349508, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.)

(mem. op.) (discussing provisions in Chapter 92, Subchapter C, of the Texas Property

Code). Within that subchapter, under Section 92.103(a), a landlord “shall refund a

security deposit to the tenant on or before the 30th day after the date the tenant

surrenders the premises” except as provided by Section 92.107. Tex. Prop. Code

Ann. § 92.103(a). Notably, Section 92.107(a) provides that a landlord “is not

obligated to return a tenant’s security deposit or give the tenant a written description

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of damages and charges until the tenant gives the landlord a written statement of the

tenant’s forwarding address for the purpose of refunding the security deposit.” Id.

§ 92.107(a).

Under Section 92.104(a), before returning the security deposit, a landlord “may

deduct from the deposit damages and charges for which the tenant is legally liable

under the lease or as a result of breaching the lease.” Id. § 92.104(a). If the landlord

retains all or a part of a security deposit, the landlord “shall give to the tenant the

balance of the security deposit, if any, together with a written description and itemized

list of all deductions.”8 Id. § 92.104(c). Pursuant to Section 92.109(d), a landlord who

“fails either to return a security deposit or to provide a written description and

itemization of deductions on or before the 30th day after the date the tenant

surrenders possession is presumed to have acted in bad faith.” Id. § 92.109(d). And

“[a] landlord who in bad faith retains a security deposit in violation of [Subchapter C]

is liable for an amount equal to the sum of $100, three times the portion of the

deposit wrongfully withheld, and the tenant’s reasonable attorney’s fees in a suit to

recover the deposit.” Id. § 92.109(a). Section 92.109 is “subject to strict

construction.” Minor v. Adams, 694 S.W.2d 148, 150 (Tex. App.—Houston [14th

Dist.] 1985, no writ).

The landlord is not required to give the tenant a description and itemized list
8

of deductions if the tenant owes rent when he surrenders possession of the premises
and there is no controversy concerning the amount of rent owed. Id. § 92.104(c)(1)–
(2).

11
3. Analysis

Among other arguments, Lopez contends that the trial court erred by granting

Larochelle and Butler’s traditional motion for summary judgment because they did

not conclusively establish that they gave her a written statement of their forwarding

address as required by Section 92.107(a). See Tex. Prop. Code Ann. § 92.107(a).

Larochelle and Butler respond by arguing that they did provide a written statement of

their forwarding address, pointing to a text message attached to their amended motion

for summary judgment.

In order to obtain traditional summary judgment on their claim that Lopez

violated Section 92.109, Larochelle and Butler must have conclusively established that

they provided Lopez with a written statement of their forwarding address.9 See id.

§§ 92.103(a), .107(a), .109; see also Brand v. Degrate-Greer, No. 02-15-00397-CV, 2017

WL 1756542, at *3 (Tex. App.—Fort Worth May 4, 2017, no pet.) (mem. op. on

reh’g) (recognizing that, “[u]nder the [P]roperty [C]ode, a landlord ‘shall refund a

security deposit to the landlord on or before the 30th day after the date the tenant

surrenders the premises,’” but only “provided that the tenant has given the landlord a

written statement of their forwarding address for purposes of refunding the security

9
In their brief, Larochelle and Butler acknowledge this requirement, stating that
“[t]he only thing the tenant has to do to be entitled to the refund of his security
deposit and itemized list of damages claimed is to give the landlord written notice of
his forwarding address, an act which starts the ‘clock’ running on the landlord’s
obligation to refund the deposit.”

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deposit”); Gluck v. Hadlock, No. 02-09-00411-CV, 2011 WL 944439, at *3 (Tex.

App.—Fort Worth Mar. 17, 2011, no pet.) (mem. op.) (stating that “[a] landlord is

obligated to return a tenant’s security deposit or provide a written description of

damages and charges” but only “once the tenant provides the landlord with a written

statement of the tenant’s forwarding address”).

The text message that Larochelle and Butler point to as evidence that they

provided Lopez with a written statement of their forwarding address does not show

what they claim it does. As a preliminary matter, the text message does not

conclusively establish the sender of the message, nor does it conclusively establish the

recipient of the message. The message provides that it was sent by “Me,” and it

states,

I had the mailbox rekeyed because Dalia kept taking my mail and I was
not getting parcels until weeks later, then would show up at my front
door unsecured. It’s best if the mailbox key is turned into the post
office, but I have no problem giving them to you directly, as soon as I
put a hold mail request in the post office.

My email address is: [email address given]

My forwarding address is:
Camron Larochelle
[Address given]

While it appears from the context of the message that it was written by

Larochelle, there is no evidence—such as affidavit testimony—establishing that

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Larochelle authored the message.10 More problematic, there is no evidence

establishing that the text message was sent to Lopez. Indeed, the context of the

message seems to indicate that it was not sent to Lopez because it begins by stating, “I

had the mailbox rekeyed because Dalia [i.e., Lopez’s first name] kept taking my mail.”

Further, it is unclear when the message was allegedly sent. To that end, the

message reflects a time and date of “10:10 PM, Jul 1,” but it does not provide what

year the message was allegedly sent. The date the message was sent is important

because—as acknowledged by Larochelle and Butler—providing the landlord with a

written statement of the tenant’s forwarding address “starts the ‘clock’ running on the

landlord’s obligation to refund the deposit.” See Tex. Prop. Code Ann. §§ 92.103(a),

.107(a), .109; Brand, 2017 WL 1756542, at *3; Gluck, 2011 WL 944439, at *3.

Moreover, while the text message purports to show Larochelle’s forwarding address, it

does not purport to show Butler’s forwarding address. See Tex. Prop. Code Ann.

§ 92.107(a).

Viewing the evidence presented in the light most favorable to Lopez—the

nonmovant—we hold that Larochelle and Butler did not conclusively establish that

they provided Lopez with a written statement of their forwarding address, a necessary

10
Larochelle filed an affidavit in which he attached “six (6) pages” kept by him
“in the regular course of [his] business affairs and communications with [Lopez].”
Those six pages included the Lease and the text messages exchanged with Lopez on
June 29, 2024. The claimed text message purporting to establish that he provided
Lopez with written notice of his forwarding address was the seventh page after his
affidavit.

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element to their claim that Lopez violated Section 92.109.11 See id. §§ 92.103(a),

.107(a), .109; Brand, 2017 WL 1756542, at *3; Gluck, 2011 WL 944439, at *3;

cf. Robinson, 2020 WL 7349508, at *3 (“Because appellants presented evidence that

they vacated the property at the end of the [l]ease term . . . and provided written

notice of their forwarding address, appellants were entitled to the return of their

deposit and an itemized list of any deductions within 30 days.”). We sustain Lopez’s

second issue, and we reverse the trial court’s grant of Larochelle and Butler’s

traditional motion for summary judgment.12

B. Lopez’s Complaint Regarding the Trial Court’s Award of Attorney’s Fees

In her third issue, Lopez argues that the trial court erred by awarding attorney’s

fees to Larochelle and Butler. Because we are reversing the trial court’s grant of

Larochelle and Butler’s traditional motion for summary judgment, we also reverse the

trial court’s award of attorney’s fees based on that grant. See MVP Fort Worth Taylor,

LLC v. Roy, No. 02-23-00060-CV, 2024 WL 3529432, at *6 (Tex. App.—Fort Worth

11
In affidavits attached to their amended summary-judgment motion,
Larochelle and Butler stated that they “promptly provided our forwarding address to
[Lopez] within the required thirty-day period.” However, that statement does not
conclusively establish that they provided Lopez with their forwarding address in
writing, a requirement of Section 92.107. See Tex. Prop. Code Ann. § 92.107(a).
12
Because we have determined that Larochelle and Butler did not conclusively
establish that they gave Lopez a written statement of their forwarding address—an
essential element of their Section 92.109 claim—we need not address Lopez’s other
arguments pertaining to the trial court’s grant of their traditional motion for summary
judgment. See Tex. R. App. P. 47.1.

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July 25, 2024, no pet.) (mem. op.) (reversing trial court’s grant of traditional summary

judgment on appellee’s breach-of-contract claim and reversing “the corresponding

award of attorney’s fees”); Harley Rogers P’ship, Ltd. v. Quick Roofing, LLC, No. 04-21-

00030-CV, 2022 WL 2230954, at *5 (Tex. App.—San Antonio June 22, 2022, no pet.)

(mem. op.) (similar). We sustain Lopez’s third issue.

C. Lopez’s Complaint Regarding the Trial Court’s Grant of the No-Evidence
Motion for Summary Judgment

In her first issue, Lopez argues that the trial court erred by granting Larochelle

and Butler’s no-evidence motion for summary judgment.

1. Standard of Review

After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

no evidence supports an essential element of the nonmovant’s claim or defense. Tex.

R. Civ. P. 166a(i). The motion must specifically state the elements for which no

evidence exists. Id. The Texas Supreme Court has called for strict enforcement of

this requirement. See State v. Three Thousand, Seven Hundred Seventy-Four Dollars and

Twenty-Eight Cents U.S. Currency, 713 S.W.3d 381, 387 (Tex. 2025) (holding that the

Texas Supreme Court requires “strict enforcement” of the rule that a no-evidence

motion for summary judgment must specifically state the element or elements for

which there is no evidence); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310–11 (Tex.

16
2009) (holding that a no-evidence motion must specifically identify the challenged

elements to satisfy Rule 166a(i)).

If the motion is sufficiently specific, the trial court must grant the motion

unless the nonmovant produces summary-judgment evidence that raises a genuine,

material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; B.C. v. Steak N Shake

Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). When reviewing a no-evidence

summary judgment, we examine the entire record in the light most favorable to the

nonmovant—Lopez—indulging every reasonable inference and resolving any doubts

against the motion, Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006), to determine if

the evidence would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v.

Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the

nonmovant if reasonable jurors could, and we disregard evidence contrary to the

nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310

(citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant

brings forward more than a scintilla of probative evidence that raises a genuine issue

of material fact, then a no-evidence summary judgment is not proper. Smith v.

O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003).

17
2. Applicable Law

Here, Larochelle and Butler’s no-evidence motion targeted Lopez’s

breach-of-contract counterclaim. The elements of a breach-of-contract claim are: (1)

the existence of a valid contract, (2) performance or tendered performance by the

plaintiff, (3) breach of the contract by the defendant, and (4) resulting damages to the

plaintiff. Old Am. Ins. Co. v. Lincoln Factoring, LLC, 571 S.W.3d 271, 282 (Tex. App.—

Fort Worth 2018, no pet.).

3. Analysis

In her brief, Lopez argues that Larochelle and Butler’s no-evidence motion

“does not effectively challenge any element of [her] counterclaim for breach of

contract.” Larochelle and Butler respond by stating that their no-evidence motion

“specifically assail[ed] two different elements” of the breach-of-contract counterclaim,

referring to the elements of breach and damages.13

In their no-evidence motion for summary judgment, Larochelle and Butler

made the following no-evidence statements concerning Lopez’s counterclaim:

• “[L]andlord has also made claims of her own, starting with breach of
contract. There is no evidence supporting any of them.”

13
As noted above, Lopez’s counterclaim alleged that Larochelle and Butler had
breached the contract in three distinct ways: (1) by failing to report health and safety
issues to her as required by Clause 11 of the Lease, (2) by moving without giving her
written notice, and (3) by failing to pay rent.

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• “There is no evidence that landlord returned the security deposit or
supplied a written description and itemization on or before that
date.”

• “[T]here is also no evidence that her withholding the security deposit
was reasonable.”

• “Landlord has no evidence that there were defects or dangerous
conditions in and about the premises, and no evidence that Tenant
becomes aware of any such condition.”

• “[S]he has no evidence of any loss or damages flowing from a failure
to notify her” of defects or dangerous conditions in or about the
premises.

• “Landlord has no evidence that tenants had moved or were moving
when she terminated their right to possession on June 29, 2023.”

• “She also has no evidence of any loss or damage from the acts she
alleges” pertaining to Larochelle and Butler’s moving from the
premises.

• “She has no evidence that she did not re-rent the premises for the
rest of the lease term.”

• “[S]he has no evidence that she did not re-let the premises.”

• “[S]he has no evidence that she provided ‘a written description and
itemization of deductions on or before the 30th day after the date the
tenant surrenders possession.’”

• “There is no evidence that landlord meets any of the foregoing
requirements [of Texas Property Code Section 92.006(e)] except
(4)(A).”

As to the first of the no-evidence statements—that there was no evidence to

support Lopez’s counterclaim—such a statement is a general challenge that fails to

19
identify the specific elements for which no evidence exists, and it will not support

summary judgment. See Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex.

App.—Dallas 2013, pet. denied) (“A no-evidence motion that only generally

challenges the sufficiency of the non-movant’s case and fails to state the specific

elements that the movant contends lack supporting evidence is fundamentally

defective and cannot support summary judgment as a matter of law.”); see also Timpte

Indus., Inc., 286 S.W.3d at 310–11.

The second and third no-evidence statements—that there was no evidence that

Lopez returned the security deposit or that her withholding of the security deposit

was reasonable—do not identify which element of Lopez’s breach-of-contract

counterclaim is being assailed. Thus, those statements will not support summary

judgment either. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc., 286 S.W.3d at 310–11;

Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) (“[T]he motion does not single out the elements as to which there is no

evidence. The motion therefore does not meet the requirements of [Rule 166a(i)].”).

And to the extent that those statements could arguably relate to Lopez’s performance

under the Lease, they are not couched in terms of Lopez’s obligations under the Lease

but rather in terms of Lopez’s obligations under Section 92.109 of the Property

Code—something unrelated to Lopez’s breach-of-contract counterclaim. See Three

Thousand, Seven Hundred Seventy-Four Dollars and Twenty-Eight Cents U.S. Currency, 713

S.W.3d at 387 (stating that the purpose of the requirement that a no-evidence motion

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specifically state the element or elements for which there is no evidence is to provide

the nonmovant with adequate information for opposing the motion and to define the

issues for the purpose of summary judgment).

The fourth and fifth no-evidence statements—that Lopez had no evidence that

Larochelle and Butler were aware of defects or dangerous conditions in and about the

Property and no evidence that Lopez had sustained any damages regarding any failure

to notify her of any defects or dangerous conditions—are different, though. Those

statements do relate to one aspect of Lopez’s breach-of-contract counterclaim: that

Larochelle and Butler breached Clause 11 of the Lease by failing to report health and

safety issues to her. We hold that the fourth and fifth no-evidence statements, which

were made following a discussion of Clause 11 of the Lease, properly informed Lopez

that Larochelle and Butler were challenging the breach and damages elements of that

part of Lopez’s breach-of-contract counterclaim. See Fieldtech Avionics & Instruments,

Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 824 (Tex. App.—Fort Worth 2008,

no pet.) (holding that statement “there is no evidence that Fieldtech did not receive

the Software it leased or that the Software did not perform” was “sufficiently specific

to pass [R]ule 166a(i) muster”).

Turning to those elements, in her brief, Lopez does not point us to any

evidence in the summary-judgment record that would raise a fact issue on whether

Larochelle and Butler had breached the Lease by failing to report health and safety

issues to her or suffered damages as a result, and we have found no such evidence,

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even when considering the exhibits attached to Lopez’s original summary-judgment

response.14 Thus, we must affirm the trial court’s summary-judgment ruling with

respect to this aspect of Lopez’s counterclaim. See B.C., 598 S.W.3d at 259; see also

Gabriel v. Associated Credit Union of Tex., No. 14-12-00349-CV, 2013 WL 865577, at *5

(Tex. App.—Houston [14th Dist.] Mar. 7, 2013, pet. denied) (mem. op.) (“Because

Gabriel introduced no evidence of damages stemming from the mistakenly assessed

late fees, the trial court properly granted no-evidence summary judgment against his

late fee claims.”).

The sixth and seventh no-evidence statements—that Lopez had no evidence

that Larochelle and Butler had moved or were moving when she terminated their

right to possession and no evidence that she had sustained any loss or damage from

their move—relate to another part of Lopez’s breach-of-contract counterclaim: that

Larochelle and Butler breached the Lease by moving without giving her written

notice. We hold that the sixth and seventh no-evidence statements, which were made

in the context of discussing Lopez’s claim that Larochelle and Butler had breached the

contract by moving without giving her any written notice, properly informed Lopez

that Larochelle and Butler were challenging the breach and damages elements of that

14
Indeed, Lopez seemingly recognizes the lack of evidence in the summary-
judgment record pertaining to this facet of her counterclaim, noting that the alleged
failure to report health and safety issues “is only one of three distinct breaches [she]
identifies” and that her failure to provide summary-judgment evidence with respect to
this part of her counterclaim “would not have any impact on [her] right to pursue her
claim based on the other breaches listed in her counterclaim.”

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aspect of Lopez’s breach-of-contract counterclaim. See Fieldtech Avionics & Instruments,

Inc., 262 S.W.3d at 824.

Turning to the damages element of that issue, in her brief, Lopez does not

point us to any evidence in the summary-judgment record that would raise a fact issue

on whether she had sustained any damages resulting from Larochelle and Butler’s

having moved when she terminated their right to possession, and we have found no

such evidence of damages, even when considering the exhibits attached to Lopez’s

original summary-judgment response.15 Thus, we must affirm the trial court’s

summary-judgment ruling with respect to this facet of Lopez’s counterclaim. See B.C.,

598 S.W.3d at 259; see also Gabriel, 2013 WL 865577, at *5.

The eighth and ninth no-evidence statements—that Lopez had no evidence

that she did not “re-rent” or “re-let” the Property—do not identify which element of

Lopez’s breach-of-contract counterclaim is being challenged. Thus, those statements

will not support summary judgment. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc.,

286 S.W.3d at 310–11; Cuyler, 60 S.W.3d at 212. And to the extent that those

statements might arguably relate to a potential affirmative defense that Lopez failed to

mitigate her damages, such a potential affirmative defense is not an essential element

of Lopez’s breach-of-contract counterclaim. See Zimmerman Truck Lines, Inc. v. Pastran,

15
Once again, Lopez seemingly recognizes the lack of evidence in the summary-
judgment record pertaining to this aspect of her counterclaim, noting that her alleged
challenge relating to Larochelle and Butler moving out of the Property was “only one
of three distinct breaches [she] identifie[d].”

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587 S.W.3d 847, 862 (Tex. App.—El Paso 2019, no pet.) (“Failure to mitigate

damages is an affirmative defense.”).

The tenth and eleventh no-evidence statements—that Lopez had no evidence

that she provided “a written description and itemization of deductions on or before

the 30th day after the date the tenant surrenders possession” and no evidence that she

met the requirements of Texas Property Code Section 92.006(e)—do not identify

which element of Lopez’s breach-of-contract counterclaim is being attacked. Thus,

those statements will not support summary judgment. See Tex. R. Civ. P. 166a(i);

Timpte Indus., Inc., 286 S.W.3d at 310–11; Cuyler, 60 S.W.3d at 212.

Having reviewed the no-evidence motion and the summary-judgment record,

and after viewing that record in the light most favorable to Lopez—the nonmovant—

we hold that Lopez has not produced summary-judgment evidence raising a genuine,

material fact issue with respect to two aspects of her breach-of-contract counterclaim:

her claim that Larochelle and Butler breached the Lease by (1) failing to report health

and safety issues and (2) moving without giving her written notice. Thus, we overrule

Lopez’s first issue with respect to those parts of her counterclaim.

However, after reviewing the no-evidence motion and the summary-judgment

record, we have also determined that Larochelle and Butler did not make any no-

evidence challenge relating to the third aspect of Lopez’s breach-of-contract

counterclaim: her claim that Larochelle and Butler breached the Lease by failing to

pay rent. Because no element of that component of the counterclaim was attacked in

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the no-evidence motion, the trial court erred by granting summary judgment on that

part of the counterclaim. See Three Thousand, Seven Hundred Seventy-Four Dollars and

Twenty-Eight Cents U.S. Currency, 713 S.W.3d at 387; Timpte Indus., Inc., 286 S.W.3d at

310–11. Thus, we sustain Lopez’s first issue with respect to that part of her

counterclaim.

IV. CONCLUSION

Having overruled part of Lopez’s first issue, we affirm the trial court’s grant of

Larochelle and Butler’s no-evidence motion for summary judgment with respect to

two aspects of Lopez’s breach-of-contract counterclaim—her claim that they

breached the Lease by (1) failing to report health and safety issues to her and

(2) moving without giving her written notice. Having sustained the other part of

Lopez’s first issue, we reverse the trial court’s grant of Larochelle and Butler’s no-

evidence motion for summary judgment with respect to one aspect of Lopez’s breach-

of-contract counterclaim—her claim that they failed to pay rent. As for Lopez’s

second and third issues, we sustained those, so we reverse the trial court’s grant of

Larochelle and Butler’s traditional motion for summary judgment and reverse the trial

court’s award of attorney’s fees. We remand this case to the trial court for further

proceedings consistent with this opinion.

/s/ Dana Womack
Dana Womack
Justice

Delivered: August 14, 2025

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