RONALD E. FRYER v. COINMACH CORPORATION--Appeal from 103rd District Court of Cameron County

NUMBER 13-00-736-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

RONALD E. FRYER, Appellant,

v.

COINMACH CORPORATION, Appellee.

On appeal from the 103rd District Court

of Cameron County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Dorsey

This is the appeal of a declaratory judgment construing the provisions of a lease that was entered into between Ronald Fryer d/b/a El Santader Apartments and Kwik-Wash, Inc. in June of 1979. Coinmach, appellee, succeeded to all rights belonging to Kwik-Wash under the lease in 1997. Under the lease, Coinmach was to occupy the laundry room of El Santander Apartments in Brownsville, Texas, and was given the exclusive right to provide coin-operated laundry equipment in that space. The lease was for a ten-year term, and was renewable for another ten-year term.

However, the lease made no express provision for any renewals after the first one. Prior to the completion of the first renewal term of the lease, Fryer brought this action seeking judgment declaring that the lease would terminate at the end of the renewal term. Coinmach took the position that the lease automatically renewed for another ten-year period upon the termination of the first renewal term.[1] Coinmach did not vacate the premises at the end of the renewal term, but remained in possession of the property throughout the trial of the declaratory judgment action. The trial court ultimately held that the lease did not automatically renew, but that Coinmach was a holdover tenant and the lease extended until June of 2001. The trial court also ordered each side to pay its own attorney=s fees.

Fryer appeals the trial court=s judgment, contending the trial court erred in two basic respects. First, he contends that the trial court abused its discretion by treating Coinmach as a holdover tenant and extending the lease. Fryer=s second major issue on appeal is somewhat enmeshed with his first. His second issue is that because a stipulation was entered into between the parties and entered by the trial court stating that attorney=s fees in the amount of $6,000.00 would be awarded to the prevailing party, the trial court=s failure to award attorneys fees to him was error. He contends that the trial court erred in failing to rule in a way that would make him the Aprevailing party,@ and therefore, the trial court erred in failing to award him attorney=s fees. We disagree on both counts.

This case was submitted to the trial court upon stipulated facts. Accordingly, this Court reviews the trial court=s order to determine whether the trial court correctly applied the law to the stipulated facts. See City of Harlingen v. Avila, 942 S.W.2d 49, 51 (Tex. App.CCorpus Christi 1997, writ denied); accord Thompson v. Continental Airlines, 18 S.W.3d 701, 705 (Tex. App.CSan Antonio 2000, no pet.); Port Arthur I.S.D. v. Port Arthur Teachers Ass'n, 990 S.W.2d 955, 957 (Tex. App.CBeaumont 1999, pet. denied); Stewart v. Hardie, 978 S.W.2d 203, 206 (Tex. App.CFort Worth 1998, pet. denied).

By his first issue, Fryer contends that the stipulated evidence and the pleadings on file did not authorize the trial court to enter a declaratory judgment holding that Coinmach was a holdover tenant for the period of time after the expiration of the last valid lease term. We do not reach this issue because we find it has become moot due to the conduct of the parties subsequent to the trial court=s rendition of judgment. The actions of the parties have left no live controversy to be decided by this Court regarding this issue.

First, it is unclear whether the trial court truly treated Coinmach as a holdover tenant, or whether it extended the lease for some other reason. In its declaratory judgment, the court held that the lease agreement extended for an additional one year period Aas a result of Coinmach=s holdover of the premises@ and would, thus, expire on AJune 1, 2001,@ unless the parties extended it further. However, the first renewal term of the lease ended on June 1, 1999. Under the rationale that Coinmach was holding over for one year, the proper date for termination would be June 1, 2000, not June 1, 2001, as recited by the trial court in its judgment. Thus, it is unclear precisely upon what basis the trial court extended the lease.

The question of whether the trial court erred in extending the lease until 2001 has been mooted because no controversy presently remains before this Court regarding this issue. Fryer brought suit seeking declaratory judgment. After the court entered judgment declaring that the original lease did not automatically extend on June 1, 1999, Coinmach vacated the property. Neither party disputes that Coinmach relinquished possession of the property in accordance with Fryer=s requests to relinquish, and with the Court=s order. Neither party disputes that Fryer received rent for all periods that Coinmach was in possession of the property. Fryer did not request the trial court award anything other than a declaratory judgment declaring the rights to the property due the two parties under the lease. The parties have complied with the trial court=s order in that regard, and have taken appropriate steps to affect its mandate. Because there would be nothing to retry if we were to reverse this matter and remand for new trial, we hold this issue has become moot. See City of West Univ. Place v. Martin, 123 S.W.2d 638, 639 (1939); Tex. Parks & Wildlife Dept. v. Tex. Assoc. of Bass Clubs, 622 S.W.2d 594 (Tex. App.CAustin 1981, writ ref=d n.r.e.). AIt is axiomatic that appellate courts do not decide cases in which no controversy exists between the parties.@ Camarenav. Tex. Emp. Comm=n, 754 S.W.2d 149, 151 (Tex. 1988). AGenerally, a case is determined to be moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.@ Id. (internal citations and quotations omitted) (quoting Murphy v. Hunt, 455 U.S. 478 (1982)). Accordingly, we overrule Fryer=s first issue on appeal.

Fryer=s second issue is likewise easily resolved. Fryer contends that the trial court lacked discretion to refuse to award attorney=s fees to the Aprevailing party@ at the trial court. We disagree.

The parties submitted a stipulation of evidence to the trial court when this case was called to trial. In that stipulation, the parties Astipulated@ that Athe prevailing party shall be entitled to attorney=s fees assuming the court find[s] the necessity for such an award.@ They further stipulated, at a later time, the precise amounts that would represent Areasonable attorney=s fees@ for the trial and subsequent appeal of

this case. Fryer argues that these stipulations required the trial court to award attorney=s fees to him. We disagree.

First, the parties had no power to stipulate to the way the court should apply the law. In declaratory judgment actions, award of attorney=s fees is permissive; it is not mandatory. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997). In this case, where there was no award of money damages, and there was no apparent prevailing party, it was well within the discretion of the trial judge to refuse any award of attorney=s fees. See also Mendleski v. Silvertooth, 798 S.W.2d 30, 32 (Tex. App.CCorpus Christi 1990, no writ.) (holding that in declaratory judgment action based on construction of a contract where there is no apparent prevailing party, the trial court has discretion to refuse any award of attorney=s fees). Because we find no error in the trial court=s refusal to award attorney=s fees to either party, we overrule appellant=s second group of issues.

Having overruled all issues presented by appellant, we AFFIRM the judgment of the trial court in all respects.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 13th day of June, 2002.

[1]That term ended in June of 1999.