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Cotter v. Tobey2/9/2005
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
James Cotter appeals from the trial court's judgment ordering him to pay damages, pre- and post-judgment interest, and attorney's fees to Carl Tobey in Tobey's suit for return of the balance of a security deposit under a real property lease. We affirm the trial court's award of damages in favor of Tobey, and reverse and remand the case to the trial court for a re-calculation of pre- and post-judgment interest.
Background
Tobey and Cotter entered into a real property lease agreement in 1998. Tobey leased a house from Cotter for a period of six months to be used as a temporary law office until Tobey's new office location was ready. The parties used a pre-printed residential lease form, with some hand-written modifications, to memorialize their agreement. One of the modifications agreed to by the parties was to allow the property to be used for a commercial purpose, a law office, so long as such use did not create a nuisance. As part of the agreement, Tobey paid a security deposit of $4000 to Cotter's brokerage company. The section of the lease pertaining to refund of the security deposit provides, "Subchapter C of Chapter 92 of the Texas Property Code governs the obligations of the parties regarding the security deposit." The lease goes on to specify items for which the landlord may deduct reasonable charges from the security deposit.
Tobey vacated the premises at the end of the lease term on or about July 31, 1998. Cotter provided Tobey with a list of deductions for cleaning and repairs on or about September 24, 1998, more than thirty days after Tobey had vacated the premises. Cotter then sent a check for the balance of the security deposit in the amount of $2076.84 on October 7, 1998.
Tobey brought suit seeking enforcement of the contractual terms of the lease and return of the remainder of his security deposit. The trial judge entered a judgment in favor of Tobey, ordering Cotter to refund the remainder of the security deposit, pay court costs, attorney's fees and pre- and post-judgment interest. On appeal, Cotter asserts that the trial court erred in applying Chapter 92 of the Texas Property Code to this dispute because §92.002 provides, "This chapter applies to the relationship between landlords and tenants of residential rental property." Tex. Prop. Code Ann. §92.002 (Vernon 1995). In a sub-issue, Cotter contends that the evidence is legally and factually insufficient to establish that the lease in question is a residential lease. Finally, Cotter asserts that, if Tobey is entitled to judgment in this case, the pre- and post-judgment interest rates applied by the trial court are incorrect and the judgment should therefore be reformed to reflect the appropriate rates in effect at the time the judgment was signed.
Analysis
Applicability of Chapter 92 of the Texas Property Code
The interpretation of an unambiguous contract is a question of law, which we review de novo. MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999); see also Wade and Sons, Inc. v. Am. Standard, Inc., 127 S.W.3d 814, 824 (Tex. App. --- San Antonio 2003, pet. denied). The court's primary concern in construing a written contract is to ascertain the true intentions of the parties, as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). To identify the intentions of the parties, the court must consider the entire writing and make an effort to harmonize and give meaning to all provisions of the contract so that none will be rendered meaningless. Id.; see also Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 158 (19
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