John Hurt and Leslea Hurt v. Amalendu Goswami and Harsha Goswami

AFFIRM in part; REVERSE in part; REMAND and Opinion Filed August 6,
2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00389-CV

JOHN HURT AND LESLEA HURT, Appellants
V.
AMALENDU GOSWAMI AND HARSHA GOSWAMI, Appellees

On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-02059-2020

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Reichek
John and Leslea Hurt appeal the trial court’s traditional and no-evidence

summary judgments in favor of Amalendu and Harsha Goswami. Asserting five

issues, the Hurts contend (1) the trial court erred in not granting their requests for a

continuance, (2) the motions for summary judgment are insufficient to support the

judgments rendered, (3) the trial court erred in considering the summary judgment

evidence submitted by the Goswamis and in striking the summary judgment

evidence they submitted, (4) the trial court was precluded from rendering judgment

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because another court had dominant jurisdiction, and (5) the trial court erred in

granting the Goswamis’ motion for new trial following the default judgment against

them. For the reasons that follow, we reverse the trial court’s traditional summary

judgment as to a portion of the Goswamis’ damages and the amount of attorney’s

fees and remand those matters for further proceedings. We affirm the judgments in

all other respects.

Background

The Hurts were tenants living in a residential property leased to them by the

Goswamis. In August 2020, the Hurts filed suit against the Goswamis in Justice

Court Precinct 4 in Collin County. The petition alleged the Goswamis refused to

repair “a condition on the leased property that would materially affect the health or

safety of an ordinary tenant.” Specifically, the Hurts alleged there was “a leak and

associated black mold problem.”

The Goswamis state they were attempting to solve the alleged leak and mold

issues when the Hurts began denying their contractors access to the property. Based

on this and other purported lease violations, the Goswamis filed a forcible detainer

eviction suit in Justice Court Precinct 3. The Hurts answered and asserted a

counterclaim for retaliatory eviction.

On September 16, 2020, the Hurts nonsuited their claims in Justice Court

Precinct 4 and, two weeks later, filed this lawsuit in Collin County Court at Law

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Number 3, reasserting their claim for failure to repair a dangerous condition under

section 92.056 of the Texas Property Code. The Goswamis’ counsel did not file an

answer to this new suit, and the Hurts obtained a default judgment against them. The

default judgment was set aside after the Goswamis timely filed a motion for new

trial.

In early 2021, the Goswamis non-suited their eviction claims in Justice Court

Precinct 3 and filed a forcible detainer and breach of lease action in County Court at

Law Number 5. They later filed an unopposed motion to consolidate those claims

with this suit in County Court at Law Number 3. The motion was granted and the

claims were consolidated. The Hurts vacated the subject property at the end of the

lease term on May 31, 2021.

On November 2, 2021, the Hurts’ counsel filed a motion to withdraw stating

continued representation of the Hurts had become unreasonably difficult. The Hurts

subsequently filed a notice that they would be representing themselves pro se along

with multiple pleadings and motions including a motion to sever the Goswamis’

claims, a motion in limine, and a motion for continuance requesting a sixty-day

extension of the current deadlines to obtain additional discovery. The motion for

continuance was not verified and did not contain a certificate of conference.

On January 25, the Hurts filed a motion for no-evidence summary judgment

on the Goswamis’ property code claim. The motion was set to be heard by

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submission on March 4. The next day, John Hurt emailed the trial court coordinator

stating it was “important to get [their] motion for continuance heard.” The court

coordinator responded that all of the Hurts’ motions would be heard at the pre-trial

conference on March 17. John replied that they should be able to “get a hearing now

on the motion to sever since it affects everything else.” The court coordinator

responded, “This will be heard at pre-trial.”

On February 7, John emailed the court coordinator stating they believed that,

because the Goswamis had not responded to their motion for continuance, motion to

sever, or motion in limine, the motions should “be considered as uncontested and

would therefore not require a hearing.” He further stated they were “looking for the

appropriate motion to file” and there was “nothing for [the court coordinator] to do.”

On February 10, the Goswamis filed a motion for traditional summary

judgment on the Hurts’ retaliation claim and on their counterclaim for breach of the

lease. This motion was set to be heard at the same time as their motion for no-

evidence summary judgment.

That same day, the Hurts filed a response to the Goswamis’ motion for no-

evidence summary judgment. Although the Hurts stated in their response that there

had been “inadequate discovery,” they additionally asserted the Goswamis’ no-

evidence motion was frivolous because they were “fully aware of all the evidence

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proving [the Hurts’] claims” which was provided to the Goswamis’ attorney in

September 2020.

Between February 14 and February 24, the Hurts filed (1) a motion for

traditional summary judgment on their claim for violations of the Texas Property

Code and retaliatory eviction, (2) an affidavit and certificate of conference in support

of the motion for continuance filed two months earlier, (3) a second motion for

continuance, (4) amended and supplemental responses to the Goswamis’ motion for

no-evidence summary judgment, (4) responses to the Goswamis’ traditional motion

for summary judgment, and (5) two “motions for reconsideration” requesting the

trial court to allow oral argument at the submission of the motions for summary

judgment. The affidavit in support of the Hurts’ first motion for continuance stated

in its entirety,

1. My name is John Hurt. I am over 18 years of age, of sound mind,
and capable of making this affidavit. The facts stated in this affidavit
are within my personal knowledge and are true and correct.

2. This request is partly due to the fact that plaintiff John Hurt is ill,
anticipating surgery and chemotherapy. Time is needed to complete
originally planned discovery, as well as to extend plaintiffs’ discovery
requests.

3. This request for continuance is not for delay only, but so justice may
be done.

The Hurts’ second motion for continuance, filed on February 16, was brought

pursuant to Rule 252 of the Texas Rules of Civil Procedure which permits a trial

court to continue a hearing or trial when a party or witness is unavailable to testify.

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The Hurts asserted in their motion that, because of the side effects of medical

treatments beginning on February 18, John would be prevented from “participating

as necessary in the case short term.” The motion requested the court to “continue

hearings, discovery, and the trial in this case until April 1, 2022.” The motion was

not verified and did not contain a certificate of conference.

The same day the Hurts filed their second motion for continuance, John

emailed the court coordinator asking when the motions on file were scheduled to be

heard. The court coordinator responded that the Goswamis’ motions for summary

judgment were scheduled to be heard by submission on March 4, the Hurts’ motion

for summary judgment was scheduled to be heard by submission on March 14, and

all other motions were scheduled to be heard at the pre-trial conference on March

17.

That night between 5:30 and 10:00 p.m., John sent the court coordinator seven

emails addressing a variety of topics including (1) the fact that the Goswamis’

motions for summary judgment would be heard before theirs, (2) their objection to

the motions being heard by submission, and (3) confirming the judge would have all

the exhibits they submitted in connection with their motion for summary judgment

and their responses to the Goswamis’ motions for summary judgment. The email

concerning the exhibits attached the evidence the Hurts wanted the judge to consider.

In addition to discussing the summary judgment motions, John also informed the

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court coordinator he had filed a new motion for continuance. He did not specifically

request the new continuance motion be set for a hearing, but stated he was

“concerned that [their] previous motion never got heard and won’t do [them] much

good by 3/17.”

At 11:34 p.m. that night, John sent an email to the Collin County clerk’s office

stating he was having trouble getting motions heard and their motion for a “medical

continuance” was not scheduled to be heard until months after it was filed. That

email was forwarded by the lead clerk to the court coordinator the next morning

who, in response to all John’s emails, informed him that any documents they wished

the court to consider in connection with the motions for summary judgment must be

filed with the court rather than emailed to her, and the timeline for the hearings on

the motions for summary judgment was set by the Texas Rules of Civil Procedure.

John replied that their request for a medical continuance was urgent and should be

granted immediately without a hearing.

One week later, on February 24, John emailed the court coordinator stating he

wanted to send out notices for the hearings on their motion for summary judgment,

motions for continuance, motion to sever, and motion in limine, but he had “lost

track of the dates and times” for the hearings. The email concluded “I don’t know

if we have one hearing for the motion for continuance I submitted in December or

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two including the one I recently submitted. Again, these will do me no good a month

down the road.”

On March 1, the Goswamis filed their replies to the Hurts’ responses to their

motions for traditional and no-evidence summary judgment and moved to strike all

evidence submitted by the Hurts. The Goswamis objected that the documentary

evidence was unauthenticated, lacked foundation, was irrelevant, or constituted

hearsay, and the affidavit testimony was conclusory or without legal basis. The

Hurts filed a reply in which they did not address the Goswamis’ specific objections

to their evidence other than to state that the pictures they submitted were taken by

them or their daughters and they would “testify to this fact under oath.”

On March 4, the trial court granted the Goswamis’ motions to strike and their

motions for traditional and no-evidence summary judgment. The Hurts, now

represented by counsel, filed a motion for new trial contending the trial court erred

in either failing to rule on their second motion for a continuance or in denying the

motion despite John’s significant health issues. They further argued the court

improperly struck their evidence, and the Goswamis’ motions were insufficient to

support the judgments. The Goswamis responded that neither of the Hurts’ motions

for continuance complied with the Texas Rules of Civil Procedure, the Hurts’

evidence was properly struck, and the motions were sufficient to support the

judgments rendered.

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The trial court denied the Hurts’ motion for new trial. This appeal followed.

Analysis

I. Granting New Trial Following Default

In their fifth issue, the Hurts contend the trial court erred in granting the

Goswamis’ motion for new trial following the default judgment taken against them.

Generally, an order granting a new trial within the trial court’s plenary power is not

subject to review either by direct appeal from that order or from a final judgment

rendered after further proceedings in the trial court. See Cummins v. Paisan Constr.

Co., 682 S.W.2d 235, 236 (Tex. 1984). The Hurts do not argue that any recognized

exception to this general rule applies. See Wilkins v. Methodist Health Care Sys.,

160 S.W.3d 559, 563 (Tex. 2005). We overrule this issue.

II. Motions for Continuance

In their first issue, the Hurts contend the trial court erred in refusing to grant

them a continuance before ruling on the motions for summary judgment. Rule

166a(g) allows a trial court to grant a continuance to a party opposing a motion for

summary judgment if that party files an affidavit setting forth the reasons the party

cannot present the facts necessary to respond to the motion. TEX. R. CIV. P. 166a(g).

Alternatively, a continuance may be granted for sufficient cause supported by

affidavit or consent of the parties. TEX. R. CIV. P. 251. A continuance seeking time

for discovery must be supported by an affidavit that describes the evidence sought,

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explains its materiality, and shows that the party requesting the continuance has used

diligence to timely obtain the evidence. D.R. Horton-Texas, Ltd. v. Savannah Props.

Assocs., L.P., 416 S.W.3d 217, 222-23 (Tex. App.—Fort Worth 2013, no pet.).

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas

2003, pet. denied). In deciding whether the trial court abused its discretion, we do

not substitute our judgment for that of the trial court, but decide only whether the

trial court’s action was arbitrary and unreasonable. Fenton v. Nissan Motor

Acceptance Corp., No. 05-22-00050-CV, 2023 WL 4731286, at *3 (Tex. App.—

Dallas July 25, 2023, no pet.) (mem. op.). When a movant fails to comply with the

verification or affidavit requirement for obtaining a continuance, we presume the

trial court did not abuse its discretion in denying the motion. See Villegas v. Carter,

711 S.W.2d 624, 626 (Tex. 1986). In addition, to preserve error for appellate review,

the record must show the movant requested a hearing on the continuance motion and

obtained a ruling. 5 Star Diamond, LLC v. Singh, 369 S.W.3d 572, 580 (Tex. App.—

Dallas 2012, no pet.). Even if a trial court abuses its discretion by denying a motion

for continuance, to obtain appellate relief, the complaining party must demonstrate

how they were harmed by the denial of the motion. Bundy v. Houston, No. 01-17-

00863-CV, 2018 WL 6053602, at *7 (Tex. App.—Houston [1st Dist.] Nov. 20,

2018, no pet.) (mem. op.).

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Most of the Hurts’ arguments focus on their contention that the trial court

refused to set their motions for continuance for a hearing. The record does not

support this contention.1 The Hurts filed their first motion for continuance on

December 17, 2021. Filing the motion, by itself, did not require the trial court to set

a hearing. See 5 Star, 369 S.W.3d at 580.2 John Hurt did not contact the court about

a hearing on the motion until January 26 when the court coordinator informed him

the motion would be heard at the pretrial conference on March 17. While John

protested that they wanted an immediate hearing on their motion to sever, he made

no complaint about the March 17 hearing date for the motion for continuance. Two

weeks later, John informed the court coordinator he believed that none of their

motions, including their motion for continuance, required a hearing and there was

nothing the court coordinator needed to do.

On February 16, John asked the court coordinator again when their motions

were scheduled to be heard. The court coordinator informed him, again, that all

pending motions other than the motions for summary judgment were scheduled to

1
The Hurts rely heavily on an email discussion between their appellate counsel and the trial court judge
about a records request in which the judge stated “[t]here were no responses” to the emails John Hurt sent
his court coordinator. The record on appeal, however, contains responses from the court coordinator to all
inquiries sent by John except one sent on February 24, 2022.
2
“Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same
standards as licensed attorneys and require them to comply with applicable laws and rules of procedure.
To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by
counsel.” Moreno v. Silva, 316 S.W.3d 815, 817 (Tex. App.—Dallas 2010, pet. denied).

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be heard on March 17. John Hurt complained about the delay in hearing their motion

for continuance in emails sent to the court after business hours, but he informed the

court coordinator the next day that the motion should not require a hearing and

should simply be granted.

It was not until February 24, more than two months after the first motion for

continuance was filed, and one week after making the first complaint about the

scheduled hearing date for the motion, that the Hurts prepared a notice of hearing

for the continuance motion and requested a hearing date prior to March 17.

Assuming this request was sufficient to preserve error as to the trial court’s failure

to grant a continuance before the March 4 summary judgment hearing, we conclude

the Hurts have not shown entitlement to relief on appeal.

The Hurts’ first motion for continuance was unverified. An affidavit in

support of the motion was not filed until two months later and stated only that John

was ill and needed time to complete discovery.3 The Hurts do not dispute that the

affidavit failed to explain what further discovery was needed, why the discovery

they sought was necessary to the case, or why the needed discovery had not been

done in the fifteen months since the case was filed. See Rana Shipping Transp.

3
The Hurts argue this affidavit was a verification of their original motion for continuance. The affidavit
was not a verification of the motion because John attested only to the truth of the matters asserted in the
affidavit which did not reference or incorporate the motion. See In re Dobbins, 247 S.W.3d 394, 397 (Tex.
App.—Dallas 2008, orig. proceeding). Accordingly, only the facts in the affidavit were sworn to.

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Indus. & Trade, Ltd. v. Calixto, No. 05-22-00337-CV, 2023 WL 4360982, at *2

(Tex. App.—Dallas July 6, 2023, no pet.) (mem. op.).

Their second motion for continuance was also unverified. No affidavit in

support of the motion was filed. The asserted basis of the motion was that John

would be beginning chemotherapy treatments on February 18 and these treatments

would “prevent him from participating as necessary in the case in the short term.”

During that time, however, the Hurts filed numerous, lengthy responses to the

Goswamis’ motions for summary judgment and the motion to strike their evidence.

The Hurts made no argument in their motion for new trial, and make no argument

on appeal, to show how their responses would have been different if they had been

given additional time. See Pollitt v. Comput. Comforts, Inc., No. 01-13-00785-CV,

2014 WL 7474073, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet.)

(mem. op.). We resolve the Hurts’ first issue against them.

III. No-Evidence Summary Judgment

As part of their third issue, the Hurts challenge the trial court’s order striking

the summary judgment evidence they submitted in response to the Goswamis’ no-

evidence motion for summary judgment. We review a trial court’s admission or

exclusion of summary judgment evidence under an abuse of discretion standard.

Rana, 2023 WL 4360982, at *2.

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The Goswamis objected to all the evidence submitted by the Hurts in response

to the motion for no-evidence summary judgment as being unauthenticated.

Documents must be authenticated to constitute competent summary judgment

evidence. Brown v. Tarbert, LLC, 616 S.W.3d 159, 164-65 (Tex. App.—Houston

[14th Dist.] 2020, pet. denied). To show their documents were properly

authenticated, the Hurts point to an affidavit made by John in support of their motion

for traditional summary judgment. Even assuming the affidavit was sufficient to

authenticate documents, it was made solely in connection with the Hurts’ motion for

traditional summary judgment. The affidavit makes no reference to the Hurts’

responses to the Goswamis’ motion for no-evidence summary judgment or the

exhibits submitted in support of those responses. Nor do the Hurts’ responses to the

motion for no-evidence summary judgment reference or incorporate the affidavit or

the evidence attached thereto. While the Hurts characterize the proceedings below

as cross-motions for summary judgment, the Hurts’ motion for summary judgment

had not yet been on file for twenty-one days and was not scheduled to be heard until

ten days after the hearing on the Goswamis’ motions. The court did not, and could

not, consider the evidence submitted in connection with the Hurts’ motion for

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summary judgment in its rulings on the Goswamis’ motions. See TEX. R. CIV. P.

166a(c).4

In the alternative, the Hurts contend that three of their exhibits were self-

authenticating. Rule 902 of the Texas Rules of Evidence provides an exclusive list

of items that are self-authenticating and require no extrinsic evidence of authenticity

to be admitted. Fleming v. Wilson, 610 S.W.3d 18, 20 (Tex. 2020). Exhibit A to the

Hurts’ response was copies of three checks – two from the Hurts to the Goswamis

dated August 3, 2020 and September 3, 2020 in the amount of $2,700, and one from

the Goswamis to the Hurts dated September 4, 2020 for $2,700. Under Rule 902(9)

commercial paper such as checks are self-authenticating. TEX. R. EVID. 902(9);

Ethridge v. State, No. 12-09-00190-CR, 2012 WL 1379648, at *18 (Tex. App.—

Tyler Apr. 18, 2012, no pet.) (mem. op., not designated for publication). Because

the Goswamis objected to the checks only on the basis of lack of authentication, the

trial court erred in striking this exhibit.

4
The Hurts contend, without analysis, that the entire court’s file, including their motion for summary
judgment and the summary judgment evidence to which the Goswamis objected, should have been
considered by the trial court because the Goswamis’ motion for traditional summary judgment stated it was
incorporating by reference “all pleadings and documents filed of record in this matter.” As support for this
contention, the Hurts cite to Kazi v. Sohail, No. 05-20-00789-CV, 2021 WL 5002421 (Tex. App.—Dallas
Oct. 28, 2021, pet. denied) (mem. op.). In Kazi, this Court addressed whether the trial court could consider
affidavit testimony submitted in support of a temporary injunction that was discussed at the hearing without
objection. Id. at *3. Kazi does not involve a summary judgment or purport to alter long standing rules of
summary judgment procedure, including that a party specifically identify the evidence being relied upon.
See TEX. R. CIV. P. 166a; Ramirez v. Colonial Freight Warehouse Co., Inc., 434 S.W.3d 244, 250 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied) (general reference to voluminous record inadequate). Nor
does Kazi support the proposition that the Goswamis waived their objections to the Hurts’ evidence.

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Exhibit C is a copy of the eviction citation issued by Justice Court Precinct 3.

The Hurts argue this document is self-authenticating because it bears the

certification of the justice court and is signed by the judge. See TEX. R. EVID. 902(2).

The Goswamis did not object to this document solely on the ground that it was not

authenticated, however. They additionally objected that the document was not

relevant to any of the elements of the Hurts’ claim made the subject of the no-

evidence summary judgment motion. Irrelevant evidence is not admissible. TEX.

R. EVID. 402. The Hurts make no argument to show how the eviction notice is

relevant to their claim the Goswamis failed to repair a water leak and mold issues in

the leased property. We conclude the trial court did not abuse its discretion in

striking this evidence.

Exhibit L is a copy of an invoice with a copy of a check superimposed on top

of it. The memo line of the check bears the notation “mold testing.” In addition to

challenging the check on authentication grounds, the Goswamis also objected that

the document contained inadmissible hearsay. Although the check is a self-

authenticating document, the notation on the check is a statement made out of court

offered to prove the truth of the matter asserted. As such, it was properly excluded

as hearsay. See Mike Persia Chevrolet, Inc. v. Blanco, 462 S.W.2d 331, 333 (Tex.

App.—Houston [14th Dist.] 1970, writ ref’s n.r.e.).

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Having determined the trial court did not abuse its discretion in striking the

Hurts’ evidence other than the three checks submitted as exhibit A, we turn to

whether the trial court properly granted the Goswamis’ motion for no-evidence

summary judgment.

The Hurts contend in their second issue that the Goswamis’ motion for no-

evidence summary judgment was unclear about which elements of their claim were

being challenged. A no-evidence motion that “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.” Jose Fuentes Co., Inc. v.

Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. denied). The

Goswamis’ motion for no-evidence summary judgment listed the following

elements of the Hurts’ cause of action: (1) there is a landlord-tenant relationship

between the parties; (2) there is a condition that materially affects the physical health

or safety of an ordinary tenant; (3) the condition was either (i) caused by ordinary

wear or tear or (ii) not caused by the tenant; (4) the tenant gave the landlord notice

to repair; (5) the tenant was not delinquent in paying rent when the notice of the

condition was given; and (6) the landlord had a reasonable time to repair or remedy

the condition, but did not make a reasonable effort. See Hamaker v. Newman, No.

02-19-00405-CV, 2022 WL 714554, at *12 (Tex. App.—Fort Worth Mar. 10, 2022,

not pet.) (mem. op.) (citing TEX. PROP. CODE ANN. §§ 92.052, .056(b)). The motion

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went on to assert that the Hurts had no evidence to satisfy elements (2), (3), (4), (5),

or (6).5 This was sufficient to inform the Hurts of the specific elements of their claim

being challenged. See Alfaro, 418 S.W.3d at 284 (there is no limit to the number of

elements that may be challenged in a no-evidence motion) (citing Nelson v. Regions

Mortg., Inc., 170 S.W.3d 858, 861 (Tex. App.—Dallas 2005, no pet.).

A no-evidence summary judgment will be sustained when (1) there is a

complete absence of evidence of a vital fact, (2) the court is barred by rules of law

or of evidence from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4)

the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The admissible evidence before the

court – the three checks – was not, standing alone, sufficient to show the Hurts were

not delinquent in their rent when they notified the Goswamis of the alleged condition

requiring repair. Nor were the checks relevant to any of the other elements

challenged by the Goswamis. Because there was no admissible evidence to create a

5
The tenant has the burden of proof in a judicial action to enforce a right resulting from the landlord’s
failure to repair or remedy a condition except that “if the landlord does not provide a written explanation
for delay in performing a duty to repair or remedy on or before the fifth day after receiving from the tenant
a written demand for an explanation, the landlord has the burden of proving that he made a diligent effort
to repair and that a reasonable time for repair did not elapse.” TEX. PROP. CODE ANN. § 92.053; Phila.
Indem. Ins. Co., v. White, 490 S.W.3d 468, 486-87 (Tex. 2016). The Hurts do not identify any admissible
summary judgment evidence that would have shifted the burden to the Goswamis on the issue of reasonable
time for repair and diligence.

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fact issue on any of the challenged elements of the Hurts’ claim, we conclude the

trial court properly granted the no-evidence summary judgment.

IV. Traditional Summary Judgment

The Goswamis moved for a traditional summary judgment on the Hurts’

retaliation claim and their counterclaim for breach of the lease agreement. To show

entitlement to summary judgment on their claim for breach of the lease, the

Goswamis were required to establish that no material fact issues existed, and

conclusively prove all elements of their cause of action as a matter of law. Ziemian

v. TX Arlington Oaks Apartments, Ltd., 233 S.W.3d 548, 554 (Tex. App.—Dallas

2007, no pet.). To be entitled to summary judgment of the Hurts’ retaliation claim,

the Goswamis were required to disprove at least one essential element of the Hurts’

cause of action or conclusively establish each element of an affirmative defense.

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a

material fact issue precluding summary judgment, evidence favorable to the

nonmovant is taken as true, every reasonable inference is indulged in the

nonmovant’s favor, and any doubts are resolved in favor of the nonmovant. Nixon

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). We review the

summary judgment record for evidence that would enable reasonable and fair-

minded jurors to differ in their conclusions. Ziemian, 233 S.W.3d at 554.

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A. Breach of Lease

The Goswamis asserted in their motion for summary judgment that the Hurts

violated specific provisions of their lease agreement by (1) failing to allow the

Goswamis’ authorized agents to complete repairs to the property, (2) failing to

maintain the property, (3) allowing additional pets on the property without written

authorization, (4) failing to pay rent and late fees from September 2020 through May

2021, (5) causing extensive damage to the property, (6) making repairs and

“improvements” to the bathrooms without written authorization, and (7) failing to

return the property to the Goswamis in the condition it was received, excluding

normal wear and tear, at the end of the lease. The Goswamis sought to recover

$32,146.79 in repair costs, $32,000 in rent and late fees, and $10,125.52 in attorney’s

fees. As summary judgment evidence, the Goswami’s submitted affidavits by

Amalendu and Harsha Goswami setting forth the relevant facts and authenticating

exhibits including, (1) copies of the lease agreement, (2) pictures of the property

taken shortly after the Hurts vacated, (3) copies of receipts for materials and services

paid for by the Goswamis in connection with repairs made to the property, and (4)

copies of messages and emails to and from the Hurts. The Goswamis also submitted

an affidavit of their attorney in support of their request for fees along with a copy of

his billing records.

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The Hurts argue for the first time on appeal that the trial court did not have

subject matter jurisdiction over the Goswamis’ claim for damages to the property

because the Goswamis lack standing to assert the claim. The Hurts rely on section

92.109 of the Texas Property Code which states that “[a] landlord who in bad faith

does not provide a written description and itemized list of damages and charges . . .

forfeits the right to withhold any portion of the security deposit or to bring suit

against the tenant for damages to the premises.” TEX. PROP. CODE ANN. § 92.109.

These types of extra-constitutional restrictions on the right of a plaintiff to bring a

particular lawsuit do not implicate standing in the jurisdictional sense. McLane

Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 913 (Tex. 2023).

Accordingly, the trial court had jurisdiction over this cause of action. See id.

The Hurts also contend the trial court erred in considering the Goswamis’

summary judgment evidence because the exhibits were not turned over during

discovery and their attorney was not designated as an expert. Although the Hurts

asserted in their response to the motion for summary judgment that the Goswamis

had only provided “a minute portion of what was asked for” in discovery, they did

not object to any of the exhibits submitted as summary judgment evidence.

Accordingly, the Hurts failed to preserve this issue for review. See Trinh v.

Campero, 372 S.W.3d 741, 744–45 (Tex. App.—El Paso 2012, no pet.); Kheir v.

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Progressive Cnty. Mut. Ins. Co., No. 14-04-00694-CV, 2006 WL 1594031, at *8

(Tex. App.—Houston [14th Dist.] June 13, 2006, pet. denied) (mem. op.).

The Hurts contend the Goswamis’ evidence is insufficient to show either their

obligation to maintain the property or that they were the proximate cause of any of

the alleged damages to the house. The Hurts’ obligations to maintain the property

were set forth in the lease agreement. Among other things, the lease required the

Hurts to “surrender the Property in the same condition as when received, normal

wear and tear excepted.” The Goswamis testified they inspected the property soon

after the Hurts moved out and found “it was in terrible condition.” Photographs

showed damage to various parts of the house.

With respect to proximate cause, it is undisputed the Hurts had control of the

property until May 31, 2021, and the Goswamis inspected the property shortly after

they moved out. Proximate cause may be established by circumstantial evidence

and absolute certainty is not required. Forrest v. Vital Earth Res., 120 S.W.3d 480,

490 (Tex. App.—Texarkana 2003, pet. denied). The Goswamis were not required

to eliminate every other possible source of the damage, but only prove a causal

connection beyond the point of conjecture or mere possibility. Id. The Hurts’ sole

control of the property until shortly before it was inspected is sufficient to show they

were responsible for the condition of the home at the time the Goswamis determined

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the property was damaged beyond normal wear and tear. The Hurts do not identify

any summary judgment evidence that would raise a fact issue on their liability.

The Hurts also argue there was “legally and factually insufficient evidence to

support the need to acquire new tools, expensive backsplash, paint equipment for a

company to come in and paint the property, or any of the other claims for damage to

the property.” A party seeking to recover the cost of repairing property must prove

the reasonable value of the repairs. Foxx v. DeRobbio, 224 S.W.3d 263, 268 (Tex.

App.—El Paso 2005, no pet.). “[M]ere proof of amounts charged or paid does not

raise an issue of reasonableness and such amounts ordinarily cannot be recovered

without showing the charges were reasonable.” Id. The reasonableness and

necessity of repair costs are issues that generally require expert testimony. Paschal

v. Engle, 03-16-00043-CV, 2016 WL 4506298, at *2 (Tex. App.—Austin 2016, no

pet.) (mem. op.).

As proof of damages, the Goswamis submitted only their own affidavit

testimony and receipts showing the amounts they paid. The Goswamis did not

purport to be experts and there was no testimony or documentary evidence submitted

to show the reasonableness or necessity of the amounts they sought to recover. We

conclude, therefore, the trial court erred in awarding those damages to the Goswamis

on summary judgment. See Foxx, 224 S.W.3d at 268. Because we have determined

the trial court properly granted summary judgment on the issue of the Hurts’ liability

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for the property damage, we reverse only the award of $32,146.79 in damages for

the cost of repairs. See TEX. R. CIV. P. 166a(a) (summary judgment may be rendered

on liability although there is genuine issue as to amount of damages).

Although the Goswamis’ claim for unpaid rent and late fees was pleaded as

part of their single claim for breach of the lease, it was a separate breach with

separate damages claimed and proven. In support of this claim, the Goswamis

submitted affidavit testimony that the Hurts failed to pay rent for the period of

September 1, 2020 through May 31, 2021. They acknowledged that the rent

payments for September and October 2020 were mistakenly returned to the Hurts

and, because of this, they did not seek to recover late payments for those two months.

They stated the remaining rent payments were never tendered.

The Hurts do not dispute they remained in the house until May 31, 2021. They

appear to argue the two improperly rejected rent payments relieved them of their

obligation to pay rent despite continuing to live in the house. They provide no

analysis and cite no authority for this proposition. The argument is, therefore,

waived. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.)

The Hurts also suggest the fact that the Goswamis did not receive the rent

payments is not proof the checks were not tendered because the Goswamis

acknowledged their lawyer returned one of the checks before it was turned over to

them. But absent any evidence the checks were sent, which the Hurts did not

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provide, we conclude there is nothing to create a fact issue on the Hurts’ failure to

make rent payments. We affirm the trial court’s summary judgment on the

Goswamis’ claim for breach of the lease to the extent it awards them unpaid rent and

late fees in the amount of $32,000.

B. Retaliatory Eviction

The Goswamis also moved for a traditional summary judgment on the Hurts’

claim for retaliatory eviction. The Hurts contend in their fourth issue that the Justice

Court Precinct 3 has dominant jurisdiction over this claim which precludes the

County Court at Law from rendering judgment on it. Although the Goswamis

nonsuited their claims in Justice Court Precinct 3, the Hurts’ counterclaim for

retaliatory eviction remained pending in that court. The Hurts did not raise the issue

of dominant jurisdiction in response to the Goswamis’ motion for summary

judgment on the retaliation claim. Instead, the Hurts asked the court to deny the

motion on the merits and filed their own motion for summary judgment on the

retaliation claim. A party’s conduct may estop them from asserting dominant

jurisdiction in another court. See Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex.

App.—Austin 1994, writ denied). Because the Hurts sought to have the merits of

their retaliatory eviction claim decided in the trial court below, we conclude they

have waived the issue of dominant jurisdiction. See id.; Roark v. Stallworth Oil and

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Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (claim may be tried by consent in

summary judgment context).

The Goswamis moved for summary judgment on the retaliation claim under

section 92.332(b)(3) of the Texas Property Code. Under section 92.332(b)(3), an

eviction based on a tenant’s material breach of the lease is not retaliatory as a matter

of law. See TEX. PROP. CODE ANN. § 92.332(b)(3). The Goswamis argued the

eviction action was based on material breaches of the lease including the Hurts’

refusal to allow the Goswamis’ authorized agents access to the property to make

repairs. In support of this assertion the Goswamis submitted an authenticated copy

of the lease, affidavit testimony showing that John Hurt asked the Goswamis’

contractors to leave the premises and later refused to allow the workers access to the

house, and authenticated messages from John showing his dissatisfaction with the

repair work being done by the Goswamis and his intent to hire his own workers.

Other than their general challenge to the admissibility of the Goswamis’

summary judgment evidence discussed above, the only evidence relevant to the

retaliation claim specifically challenged by the Hurts on appeal is one statement in

Harsha Goswami’s affidavit that “On August 17, 2020, we were informed that the

Hurts would not allow access to the home.” The Hurts argue this statement is

“outside her personal knowledge and unsubstantiated.” Even assuming this

statement was improperly admitted, it was cumulative of substantially similar

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unchallenged testimony by Amalendu Goswami. Therefore, any error in admitting

the statement was harmless. See State v. Dawmar Partners, Ltd., 267 S.W.3d 875,

881 (Tex. 2008).

The Hurts present no other arguments on appeal challenging the sufficiency

of the evidence to support the trial court’s summary judgment on the retaliation

claim. They also do not identify any evidence that would raise a genuine issue of

material fact on this cause of action. We conclude, therefore, the Hurts have failed

to demonstrate the trial court erred in granting summary judgment against them on

their claim for retaliatory eviction.

Conclusion

Based on the foregoing, we reverse the portion of the trial court’s traditional

summary judgment awarding the Goswamis $32,146.79 for repairs to the leased

property and remand that damages issue for further proceedings. Because further

proceedings are necessary, we also reverse and remand the award of attorney’s fees

for recalculation. See TEX. R. APP. P. 44.1(b). We affirm the judgments in all other

respects.

/Amanda L. Reichek/
AMANDA L. REICHEK
220389F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN HURT AND LESLEA HURT, On Appeal from the County Court at
Appellants Law No. 3, Collin County, Texas
Trial Court Cause No. 003-02059-
No. 05-22-00389-CV V. 2020.
Opinion delivered by Justice
AMALENDU GOSWAMI AND Reichek. Justices Molberg and Smith
HARSHA GOSWAMI, Appellees participating.

In accordance with this Court’s opinion of this date, the judgments of the
trial court are AFFIRMED in part and REVERSED in part. We REVERSE that
portions of the trial court’s traditional summary judgment awarding AMALENDU
GOSWAMI and HARSHA GOSWAMI $32,146.79 in repair costs and their
attorney’s fees. In all other respects, the trial court's judgments are AFFIRMED.
We REMAND this cause to the trial court for further proceedings consistent with
this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered August 6, 2024

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