Amos McAlister a/k/a A.L. McAlister, Individually and d/b/a Albam Investments and Barbara McAlister, Individually and d/b/a Albam Investments v. Hatbreeze Properties, L.L.C.--Appeal from 141st District Court of Tarrant County (Majority)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
AMOS MCALISTER A/K/A A.L.
MCALISTER, INDIVIDUALLY AND
D/B/A ALBAM INVESTMENTS AND
INDIVIDUALLY AND D/B/A ALBAM
HATBREEZE PROPERTIES, L.L.C.
FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
---------Appellants Amos McAlister and Barbara McAlister
McAlisters), individually and doing business as Albam Investments, appeal the
trial court‘s judgment awarding appellee Hatbreeze Properties, L.L.C. damages
See Tex. R. App. P. 47.4.
for the McAlisters‘ breach of their commercial lease. We will modify the trial
court‘s judgment and affirm it as modified.
In April 2008, the McAlisters entered into a five-year commercial lease
agreement with Hatbreeze for an industrial property. The monthly rent under the
lease was $3,500.2 The McAlisters paid the rent until January 2009.3 In a letter
dated March 3, 2009, the McAlisters stated that they learned that Hatbreeze‘s
insurance company was cancelling ―the insurance on the building‖ and that they
were concerned ―as to whether [their] liability and worker‘s comp would be valid if
there [were] no insurance on the building.‖ The letter concluded, ―Therefore, to
alleviate this situation, I am moving the cabinet shop from this premises. I will be
vacating your building asap.‖
In January 2010, Hatbreeze sent a formal demand letter to the McAlisters
requesting $192,000, exclusive of attorneys‘ fees and other expenses. The letter
stated, ―Pursuant to Section 11.02 D of the Lease, [Hatbreeze] has hereby opted
to accelerate the unpaid rent for the full term of the Lease. . . . The lease also
entitles [Hatbreeze] to collect 5% interest on this amount as a Late Charge.‖ The
McAlisters did not respond. In February 2010, Hatbreeze sued the McAlisters for
The parties agreed to a reduced rent for three months at the beginning of
the lease so that the total amount of rent to be paid over five years was
The total amount of rent the McAlisters paid from May 2008 to January
2009 was $26,250.
breach of contract and sought damages ―consistent with the terms of the Lease
providing for acceleration, interest[,] and a security lien.‖ Hatbreeze alleged that
its damages were $178,500 in unpaid rent plus $8,925 in interest, attorneys‘
fees, and court costs.
The McAlisters answered and asserted that Hatbreeze had breached the
lease by failing to renew the insurance on the property in January 2009 and that
Hatbreeze had failed to mitigate its damages.
The McAlisters also filed
counterclaims for breach of contract, fraud, and fraudulent inducement.
Hatbreeze filed a traditional and no-evidence motion for summary judgment on
its claim against the McAlisters and on the McAlisters‘ counterclaims. No order
on the summary judgment motion appears in the record, but the final judgment
provides that the trial court granted the motion in September 2010 as to
Hatbreeze‘s claim and as to the McAlisters‘ counterclaims, defenses, and
Hatbreeze relet the property in October 2010 for $3,400 per month, which
is $100 per month less than the McAlisters‘ rent under their lease. Hatbreeze
filed a supplemental petition noting the new tenant and lease terms, and praying
for damages in pursuit of reletting the property. A trial to the bench was held on
the matter of damages, and the trial court awarded Hatbreeze damages of
$95,332.68, attorneys‘ fees, court costs, and prejudgment interest. This appeal
We address the McAlisters‘ fourth through ninth issues first, as those
challenge the summary judgment, are potentially dispositive, and afford the
greatest relief. See Tex. R. App. P. 47.1; see generally VanDevender v. Woods,
222 S.W.3d 430, 433 n.9 (Tex. 2007); West v. Robinson, 180 S.W.3d 575, 576–
77 (Tex. 2005).
I. Summary judgment
Hatbreeze moved for traditional summary judgment on its breach of
contract claim. It moved for no-evidence summary judgment on the McAlisters‘
defenses of failure to mitigate and discharge and on their counterclaim for breach
Hatbreeze moved for summary judgment on the McAlisters‘
counterclaims of fraud and fraudulent inducement on both traditional and noevidence grounds.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). 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 there is no evidence to support 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 there is no evidence.
Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court
The McAlisters did not assign error to the summary judgment on their defense
of failure to mitigate.
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i)
& cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). 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). A
plaintiff is entitled to summary judgment on a cause of action if it conclusively
proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c);
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A plaintiff who conclusively
negates at least one essential element of a cross-claim is entitled to summary
judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508
(Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (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 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
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), cert. denied, 541 U.S. 1030
(2004). When a party moves for summary judgment under both rules 166a(c)
and 166a(i), we will first review the trial court‘s judgment under the standards of
rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If
the appellant failed to produce more than a scintilla of evidence under that
burden, then there is no need to analyze whether the appellee‘s summary
judgment proof satisfied the less stringent rule 166a(c) burden. Id.
The McAlisters‘ fourth, seventh, eighth, and ninth issues involve the
question of whether Hatbreeze was required by the lease to maintain insurance
on the property, and if so, whether Hatbreeze maintained the insurance as
In their eighth and ninth issues, the McAlisters complain that the trial court
erred in granting traditional summary judgment on Hatbreeze‘s claim for breach
of contract because a genuine issue of material fact existed regarding whether
Hatbreeze performed under the lease. Specifically, the McAlisters challenge the
trial court‘s findings that the lease requirement that Hatbreeze have insurance
was immaterial or a mutually dependent term.
In their seventh issue, the
McAlisters challenge the no-evidence summary judgment on their affirmative
defense of discharge, arguing that Hatbreeze‘s failure to maintain insurance on
the property discharged their duty to perform under the contract. In their fourth
issue, the McAlisters challenge the no-evidence summary judgment on their
claim for breach of contract because Hatbreeze failed to maintain insurance as
required by the lease.
In order to recover on its breach of contract case, Hatbreeze was required
to show (1) the existence of the lease; (2) its compliance with the terms of the
lease; and (3) the breach of the lease by the McAlisters. See McGraw v. Brown
Realty Co., 195 S.W.3d 271, 276 (Tex. App.—Dallas 2006, no pet.); Bieganowski
v. El Paso Med. Ctr. Joint Venture, 848 S.W.2d 361, 362 (Tex. App.—El Paso
1993, writ denied). The McAlisters argued that Hatbreeze did not comply with
the section of the lease that required it to maintain insurance on the property.
Hatbreeze‘s alleged breach of contract, they argued, defeats summary judgment
on Hatbreeze‘s breach of contract claim, the McAlisters‘ affirmative defense of
discharge, and their counterclaim for breach of contract.
Only a material breach by a party to an agreement will excuse the
performance of the other contracting party.
See Hernandez v. Gulf Group
Lloyds, 875 S.W.2d 691, 692 (Tex. 1994). In determining the materiality of a
breach, courts consider, among other factors, the extent to which the
nonbreaching party is deprived of the benefit it could have reasonably expected
from the other party‘s full performance. Id. at 693. The less the nonbreaching
party is deprived of its expected benefit, the less material the breach. Id. It
follows that if there is no evidence of an expected benefit to the nonbreaching
party, there is no evidence of the materiality of the breach. While materiality of a
breach is normally a question of fact, if there is no evidence to raise a question of
fact, the court may grant summary judgment as a matter of law. See Tex. R. Civ.
P. 166a(c); Frost Nat’l Bank, 315 S.W.3d at 508.
Section 5.01 of the lease states,
During the Term, Landlord shall maintain policies of insurance
covering loss of or damage to the Premises in an amount or
percentage of replacement value as Landlord deems
reasonable . . . . The policies will provide protection against all perils
that Landlord reasonably deems necessary. Landlord may, at
Landlord‘s option, obtain insurance coverage for Tenant‘s fixtures,
equipment[,] or building improvements installed by Tenant in or on
Tenant shall, at Tenant‘s expense, maintain
insurance on Tenant‘s fixtures, equipment[,] and building
improvements as Tenant deems necessary to protect Tenant‘s
interest. . . . Any property insurance carried by Landlord or Tenant
shall be for the sole benefit of the party carrying the insurance and
under its sole control.
The lease‘s plain language states that any insurance on the property carried by
Hatbreeze was for the sole benefit of Hatbreeze, not the McAlisters.
McAlisters argue that they provided evidence that Hatbreeze told them that its
insurance had lapsed and thus, the McAlisters argue, they have demonstrated
that a genuine issue exists as to whether Hatbreeze violated terms of the lease.
However, the McAlisters have not provided any evidence of a benefit they would
have received by Hatbreeze maintaining property insurance for its ―sole benefit.‖
Without a benefit to the McAlisters, any breach by Hatbreeze of the insurance
provisions cannot be deemed material.
There is no evidence that Hatbreeze was required to maintain insurance
for the McAlisters‘ benefit. Thus, there is no evidence that Hatbreeze failed to
perform under the contract so as to discharge the McAlisters from paying rent.
Summary judgment was therefore proper on the McAlisters‘ discharge defense
and their counterclaim for breach of contract. Hatbreeze demonstrated that it did
not materially breach the lease by failing to provide insurance on the property so
summary judgment was also proper on Hatbreeze‘s claim for breach of contract
because there is no genuine issue as to whether Hatbreeze performed under the
contract, and the McAlisters did not challenge any other element of Hatbreeze‘s
cause of action. We overrule the McAlisters‘ fourth, seventh, eighth, and ninth
B. Fraud and fraudulent inducement
In their fifth and sixth issues, the McAlisters challenge the summary
judgment on their counterclaims for fraud and fraudulent inducement. Hatbreeze
moved for summary judgment on the McAlisters‘ counterclaims of fraud and
fraudulent inducement on both traditional and no-evidence grounds. Thus, we
will review the trial court‘s judgment under the no-evidence standards first to
determine if the McAlisters produced a scintilla of evidence to support their
claims. See Ford Motor Co., 135 S.W.3d at 600.
The elements of fraud are: (1) that a material representation was made;
(2) the representation was false; (3) when the representation was made, the
speaker knew it was false or made it recklessly without any knowledge of the
truth and as a positive assertion; (4) the speaker made the representation with
the intent that the other party should act upon it; (5) the party acted in reliance on
the representation; and (6) the party thereby suffered injury.
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011).
With a fraudulent inducement claim, the elements of fraud must be established
as they relate to an agreement between the parties.
Haase v. Glazner, 62
S.W.3d 795, 798–99 (Tex. 2001).
In their petition, the only injury that the McAlisters claimed as a result of
Hatbreeze‘s alleged common law fraud was the cost of moving the business from
the property, a cost of $106,114.
However, the McAlisters have repeatedly
asserted that the reason they vacated the premises was their belief that
Hatbreeze‘s insurance had been cancelled. As Amos McAlister stated in his
I vacated the building based upon the representations by
Hatbreeze regarding the insurance. This reliance was made clear in
my letter dated March 3, 2009, which was never responded to. Had
they informed me that the insurance was still on the property, I would
have continued to work with them to remedy the other defects on the
property rather than vacating.
But the McAlisters‘ claim for fraud, as alleged in their live petition, is based
on alleged misrepresentations concerning the age and structural condition of the
roof, not misrepresentations about insurance. The summary judgment evidence
that the McAlisters direct us to in support of the assertion of error deal only with
the issue of the roof. Amos McAlister‘s own affidavit defeats their argument. The
undisputed evidence shows that the McAlisters did not vacate the building due to
misrepresentations concerning the roof but instead because Hatbreeze
purportedly let the insurance lapse. There is no evidence that the sole injury of
which the McAlisters complain was caused by misrepresentations regarding the
roof. The McAlisters have not presented any evidence of injury associated with
the alleged fraud. Thus, the trial court did not err in granting summary judgment
on their fraud claim.
As to their fraudulent inducement claim, the McAlisters argue that
Hatbreeze made two fraudulent statements: one, that the building had a new
roof; and two, that the building had only been used for storage. However, the
only damages that the McAlisters allege were that materials stored in the building
were damaged ―[d]ue to the leaking.‖ The McAlisters alleged no injury resulting
from the alleged fraudulent statement that the building had only been used for
storage, nor did they present any evidence that the building‘s use for purposes
other than storage caused them injury.
Thus, there is no evidence as to
damages caused by the second alleged fraudulent statement and the trial court
did not err in granting summary judgment on that claim.
As to the first alleged fraudulent statement—that the building had a new
roof—the only evidence the McAlisters presented as to the falsity of the
statement was evidence that the roof leaked.
The building on the property
consisted of two parts: a concrete industrial office building and a steel structure
with a loading dock. The evidence showed that the main building had been
reroofed in 2007 and that the steel structure ―had been overlaid with a clear
roofing material at the same time the new roof was put on the concrete building
in 2007.‖ However, an ―after[-]installed air conditioning unit with tubing [was]
installed into the surface of the roof. This tubing was not installed correctly and
caused a minor leak in the Building.‖ Also, the steel structure ―was structurally
Any time the wind would blow, the building would shift and the
sealants would crack, resulting in leaks.‖
Thus, the evidence was either that a poorly installed air conditioning unit or
a poor reroofing job caused the leaking in the main building, not that it was not
actually reroofed. The evidence also showed that it was either a poor reroofing
job on the steel structure or its state of deterioration that led to the leaking in the
steel building, not that it was not reroofed. And although Amos McAlister states
in his affidavit that he had been assured that the steel structure was ―watertight,‖
he did not plead that the statements regarding the watertightness of the building
were fraudulent. In short, the McAlisters did not plead what they had evidence
of, and they did not provide evidence on what they pleaded. Thus, the trial court
did not err in granting summary judgment on their claim for fraudulent
We overrule the McAlister‘s fifth issue. Because we overrule their fifth
issue, we do not reach their sixth issue regarding the validity of the fraudulent
inducement waiver. See Tex. R. App. P. 47.1.
II. Damages and attorney’s fees
The McAlisters‘ first through third issues complain of the measure of
damages used by the trial court. Their tenth through thirteenth issues complain
of the amount of damages and attorney‘s fees awarded. The trial court awarded
Hatbreeze $95,332.68 in actual damages. The trial court made the following
findings of fact relevant to the damages award:
8. As of the date of the Judgment, Defendants failed to pay
twenty months of rent for a total of $70,000 before Plaintiff was able
to lease the Property to another tenant in October of 2010. There
were thirty (30) months left on the Lease Agreement in October
9. Pursuant to Section 3.03 of the Lease Agreement, a five
percent (5%) late fee may be imposed upon Defendants for failure to
pay rent. Five percent (5%) of $70,000.00 is $3,500.00.
10. Plaintiff entered into a lease agreement with a new tenant
who began paying rent in October of 2010 at the rate of $3,400.00
per month. The difference in rent between Defendants‘ Lease
Agreement and the new tenant‘s lease agreement is $100.00 per
month. The present value of the difference in rent between
Defendants and the new tenant is $2,922.50.
11. Pursuant to 11.02 of the Lease Agreement, Plaintiff was
entitled to declare rent and other items due under the Lease
Agreement once Defendants breached the Lease Agreement. Also
therein, Plaintiff could relet the premises in which case Defendants
would be liable for any deficiency that may arise by reason of any
such reletting including professional service fees, reasonable
attorneys[‗] fees, court costs, remodeling expenses[,] and other costs
12. Pursuant to Section 7.03B of the Lease Agreement,
Defendants were responsible for maintenance and repair of the
Property and the HVAC units. . . .
15. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $3,530.00 for electrical bills.
16. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $2,699.53 for the City of Fort Worth water, trash[,] and
17. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $3,097.00 for yard cleanup and other handy man services.
18. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $349.65 for air conditioning maintenance.
19. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $1,200.00 for remodeling bills.
20. Between the period in which Defendants vacated the
property and a new tenant was obligated under a lease, Plaintiff
incurred $8,024.00 for realtor commission.
A. The measure of damages
In their first issue, the McAlisters argue that the damage provisions of the
contract were unenforceable penalties. The McAlisters rely on Stewart v. Basey,
245 S.W.2d 484, 487 (Tex. 1952), for its holding that when a contract provides
the same reparation for the breach of a trivial stipulation as for the breach of an
important one, the damages are not just compensation and the provision is a
penalty. The McAlisters argue that because their failure to comply ―with any
term, condition[,] or covenant‖ of the lease is considered a default and could
result in the same remedies as would their failure to pay rent, the remedies
provision is an unenforceable penalty.
We first note that under the lease‘s terms, the stipulation that a failure to
comply ―with any term, condition[,] or covenant‖ of the lease did not rise to a
default until the McAlisters continued that failure ―for a period of thirty (30) days
after Landlord deliver[ed] written notice of the failure to Tenant.‖5
McAlisters could not have defaulted by simply failing to maintain the yard or
HVAC system, but only if they persisted in violating the contract for the stated
period after receiving written notice of their violation.
Second, the McAlisters did not bring forth evidence that the stipulated
damages were unreasonable. See SP Terrace, L.P. v. Meritage Homes of Tex.,
LLC, 334 S.W.3d 275, 287 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Urban
Television Network Corp. v. Liquidity Solutions, 277 S.W.3d 917, 919 (Tex.
App.—Dallas 2009, no pet.) (noting that it is the defendant‘s burden to
demonstrate the unreasonableness of a liquidated damages clause). The trial
court awarded Hatbreeze damages under the contract provision allowing
Hatbreeze to relet the premises and receive the deficiency from the McAlisters.
Section 11.01(A) of the lease, on the other hand, provides for a default
based on a failure to pay rent when the failure continues for five days after
Hatbreeze delivers notice of the failure.
While the property was empty, the deficiency was the full amount of rent. After it
was relet, the deficiency was $100 per month, plus the costs of reletting. This is
the amount that the trial court awarded Hatbreeze, plus its costs for utilities and
maintenance of the property. Additionally, the McAlisters stated in their response
to Hatbreeze‘s motion for summary judgment on damages that this was the
correct measure of damages. Because we hold that the trial court was correct in
calculating damages pursuant to the damages provision of the contract, we
overrule the McAlisters‘ first issue, and we do not reach their third issue. See
Tex. R. App. P. 47.1.
In their second issue, the McAlisters argue that the trial court erred by
finding that Hatbreeze never used the property for its own purposes.
McAlisters do not explain how this finding bears on the damages awarded by the
trial court. To the extent that the McAlisters argue that Hatbreeze‘s use of the
property should reduce the damages they were required to pay, we note that it
was the McAlisters‘ burden to show the amount of reduction. See Austin Hill
Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997).
Although there was evidence that Hatbreeze stored some items in a portion of
the building while it was without a tenant, there was no evidence of what amount
the damages should be reduced because of it.
We overrule the McAlisters‘
B. Attorneys’ fees and the amount of damages
1. Excessive demand
In their twelfth issue, the McAlisters argue that the trial court erred by
granting Hatbreeze attorneys‘ fees because Hatbreeze‘s initial demand was
A creditor who makes an excessive demand upon a debtor is not entitled
to attorney‘s fees for subsequent litigation required to recover the debt. Findlay
v. Cave, 611 S.W.2d 57, 58 (Tex. 1981). Application of this rule is limited to
situations where the creditor refuses a tender of the amount actually due or
indicates clearly to the debtor that such a tender would be refused.
Hernandez v. Lautensack, 201 S.W.3d 771, 777 (Tex. App.—Fort Worth 2006,
pet. denied). A demand letter that states that the full demand amount must be
tendered indicates a refusal to accept tender of a lesser amount. Aero DFW, LP
v. Swanson, No. 02-06-00179-CV, 2007 WL 704911, at *4 (Tex. App.—Fort
Worth Mar. 8, 2007, no pet.) (mem. op.); Warrior Constructors, Inc. v. Small Bus.
Inv. Co. of Houston, 536 S.W.2d 382, 386 (Tex. Civ. App.—Houston [14th Dist.]
1976, no writ).
The initial demand letter to the McAlisters sought $192,000 in damages,
[T]his letter shall serve as a demand that you make arrangements to
pay the full amount of $192,000.00 plus attorney‘s fees of $2,500.00
for handling this matter within thirty (30) days of this letter. In the
event you fail to pay the amount, my client will be forced to file suit
against you . . . for breach of contract.
At the time of the demand, fifty months remained on the McAlisters‘ lease.
Multiplied by their monthly rent of $3,500, the McAlisters would have owed only
$175,000—$17,000 less than Hatbreeze‘s demand.
Hatbreeze never offered
any explanation as to the $17,000 difference.
The McAlisters did not respond to the demand letter.
language requiring the McAlisters to pay the full $192,000 or else Hatbreeze
would file suit indicates Hatbreeze‘s unwillingness to accept the actual amount
due. See Aero DFW, 2007 WL 704911, at *4; Warrior Constructors, 536 S.W.2d
at 386; Hernandez, 201 S.W.3d at 777. Thus, the McAlisters were not required
to respond in order to demonstrate Hatbreeze‘s refusal to accept tender of a
lesser amount. Hatbreeze‘s demand exceeded the total accelerated rent and
there was no evidence that they were entitled to the extra $17,000. Because the
demand was excessive and the demand letter indicated a clear intent to refuse
the amount actually due to them, Hatbreeze is not entitled to attorney‘s fees in
this case. See Findlay, 611 S.W.2d at 58; Aero DFW, 2007 WL 704911, at *4.
We sustain the McAlisters‘ twelfth issue.
2. Utilities and property maintenance costs
In their eleventh issue, the McAlisters argue that the trial court erred by
allowing Hatbreeze to recover on its claims for utilities and property maintenance
because Hatbreeze did not provide notice as required by the lease. Hatbreeze
added a demand for utilities and maintenance in its first supplemental petition.
The McAlisters rely on section 11.01 of the lease for their assertion that
Hatbreeze was required to deliver written notice to them of their failure to pay the
utilities and maintenance. Section 11.01 states, in part,
Each of the following events is an event of default under the Lease:
A. Failure of Tenant to pay any installment of the Rent or
other sum payable to Landlord under this Lease on the date that it is
due and the continuance of that failure for a period of five (5) days
after Landlord delivers written notice of the failure to Tenant. . . .
B. Failure of Tenant to comply with any term, condition[,] or
covenant of this Lease, other than the payment of Rent or other sum
of money, and the continuance of that failure for a period of thirty
(30) days after Landlord delivers written notice of the failure to
F. Vacancy or abandonment by Tenant of any substantial
portion of the Premises or cessation of the use of the Premises for
the purpose leased.
Section 11.02 states,
Upon the occurrence of any of the events of default listed in Section
11.01, Landlord may pursue any one or more of the following
remedies without any prior notice or demand.
A. Terminate this Lease . . . . Tenant shall pay to Landlord
on demand the amount of all loss and damage that Landlord may
suffer by reason of the termination, whether through inability to relet
the Premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the Premises, without
terminating this Lease . . . . Landlord may relet the Premises and
receive the rent therefor. Tenant agrees to pay Landlord monthly or
on demand from time to time any deficiency that may arise by
reason of any such reletting. In determining the amount of the
deficiency, the professional services fees, reasonable attorneys‘
fees, court costs, remodeling expenses[,] and other costs of reletting
will be subtracted from the amount of rent received under the
C. Enter upon the Premises, without terminating this Lease
and without being liable for prosecution or for any claim for
damages, and do whatever Tenant is obligated to do under the
terms of this Lease. Tenant agrees to pay Landlord on demand for
expenses that Landlord may incur in thus effecting compliance with
Tenant‘s obligations under this Lease, together with interest thereon
at the rate of twelve percent (12%) per annum from the date
expended until paid. . . .
D. Accelerate and declare the Rent for the entire Term, and
all other amounts due under this Lease, at once due and payable,
and proceed by attachment, suit[,] or otherwise, to collect all
amounts in the same manner as if all such amounts due or to
become due during the entire Term were payable in advance by the
terms of this Lease, and neither the enforcement or collection by
Landlord of those amounts nor the payment by Tenant of those
amounts will constitute a waiver by Landlord of any breach, existing
or in the future, of any of the terms or provisions of this Lease by
Tenant or a waiver of any rights or remedies that Landlord may have
with respect to any breach.
G. Nothing in this Lease will be construed as imposing any
duty upon Landlord to relet the Premises. Except as required by
applicable law, Landlord will have no duty to mitigate or minimize
Landlord‘s damages by virtue of Tenant‘s default. Any duty imposed
by law on Landlord to mitigate damages after a default by Tenant
under this Lease will be satisfied in full if Landlord undertakes to
lease the Premises to another tenant (a ―Substitute Tenant‖) . . . .
The McAlisters defaulted on the lease under subsection (A) of section
11.01 by failing to pay rent and under subsection (F) by vacating the property.
Hatbreeze did not contend that the McAlisters defaulted under subsection (B).
Once the McAlisters defaulted, Hatbreeze could pursue, without notice, any of
the remedies listed in section 11.02. Subsection (C) of that section includes
―do[ing] whatever Tenant is obligated to do under the terms of this Lease.‖ The
McAlisters have not challenged the trial court‘s findings that they were
responsible under the lease ―for maintenance and repair of the Property and the
HVAC units‖ and ―for all utility costs.‖ See McGalliard v. Kuhlmann, 722 S.W.2d
694, 696 (Tex. 1986) (stating that unchallenged findings of fact ―are binding on
an appellate court unless the contrary is established as a matter of law, or if there
is no evidence to support the finding‖). Thus, the contract allowed Hatbreeze to
seek reimbursement for utility and maintenance costs without notice once the
McAlisters defaulted by failing to pay rent and vacating the property. The trial
court did not err in allowing Hatbreeze to recover those costs and we overrule the
McAlisters‘ eleventh issue.
3. The security deposit
In their tenth issue, the McAlisters challenge the trial court‘s refusal to
credit their $3,500 security deposit to the amount owed.
At trial, Marcus
Johnson, president of Hatbreeze, testified that the McAlisters had paid a security
deposit as required by the contract. The contract also allowed Hatbreeze to
apply the security deposit to ―any unpaid Rent or other charges due from Tenant
or to cure any other defaults of Tenant.‖ See Tex. Prop. Code Ann. § 93.006(a)
(West 2007) (allowing the landlord to deduct from the deposit charges for which
the tenant is liable).
Johnson testified that he had not credited the security
deposit to the amount owed. Hatbreeze did not provide any evidence that the
deposit had been spent, nor did it provide any reason why the deposit should be
forfeited. This evidence establishes the McAlisters‘ right to a credit in the amount
of the deposit, and the trial court‘s failure to credit the deposit is contrary to the
evidence. See Thrift v. Johnson, 561 S.W.2d 864, 869 (Tex. Civ. App.—Houston
[1st Dist.] 1977) (holding that a lease provision allowing for the forfeiture of a
security deposit as well as the pursuit of a cause of action for damages was an
unenforceable penalty clause). We sustain the McAlisters‘ tenth issue.
4. Utilities paid by third parties
In their thirteenth issue, the McAlisters claim that the trial court erred in
awarding Hatbreeze the utilities that were paid by third parties. At trial, Johnson
testified that Hatbreeze allowed a band to practice on the property in October
2009 and that the band mowed the lawn and paid the electricity while they were
there. He said,
[P]art of our arrangement with them was that they paid for—while
they were there, they paid for their electricity.
Q. Has that amount been reduced out of what you‘re
A. It should have been. I mean, I assume so. . . . If not, it
was an oversight of a couple of hundred dollars.
Dave Tanner, another principal of Hatbreeze, testified that that the band ―paid
one month of the electricity, and I think it was $251.‖ No business records or bills
were introduced to show what amount, if any, the band paid.
The McAlisters argue, without citation to authority, that it was Hatbreeze‘s
burden to prove its damages. However, it was the McAlisters‘ burden to prove
the amount by which Hatbreeze reduced its damages by renting the property to
the band. See Austin Hill Country Realty, Inc., 948 S.W.2d at 299. Because
there was no evidence of the precise amount of rent paid by the band, the trial
court did not err in finding that the McAlisters failed to meet their burden. We
overrule their thirteenth issue.
Having sustained the McAlisters‘ tenth and twelfth issues, and having
overruled their other eleven issues, we modify the trial court‘s judgment to reduce
the damage award by the $3,500 security deposit and to remove the award of
attorney‘s fees. We affirm the judgment as modified.
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: February 23, 2012