REPLACEMENT RENT-A-CAR, INC., Appellant v. JCD, INC., Appellee

AFFIRMED and Opinion filed December 22, 1992.
 
 
S
In The
 
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-92-00379-CV
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REPLACEMENT RENT-A-CAR, INC., Appellant
V.
JCD, INC., Appellee
..............................................................
On Appeal from the 298th District Court
Dallas County, Texas
Trial Court Cause No. 90-1820-M
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O P I N I O N
Before Justices Baker, Kinkeade, and Burnett
Opinion By Justice Baker
        Based on the jury's verdict, the trial court entered judgment against Replacement Rent-a-Car, Inc. Replacement contends the judgment is erroneous because JCD waived its breach of contract action and its right to recover attorney's fees. Replacement asserts the trial court erred in awarding both prejudgment and postjudgment interest for the same period. Replacement also contends the trial court should have awarded it judgment on its counterclaim because the jury's answers to the questions on its counterclaim were against the great weight and preponderance of the evidence. JCD brings two crosspoints contending that the trial court erred in not awarding it stipulated damages for Replacement's failure to pay property taxes and for damages the jury found for injury to JCD's parking lot.
        We sustain Replacement's points of error about appellate attorney's fees and about the interest award and overrule Replacement's other points of error. We sustain JCD's crosspoints. We reform the judgment and affirm the judgment as reformed.
FACTUAL BACKGROUND
        Replacement entered into a three-year lease with JCD for premises for Replacement's car-rental business. The lease required Replacement to pay rent, the property taxes, and to make and pay for any repairs to the premises. JCD was responsible for repairs to the parking lot before the lease term. Replacement was responsible for any repairs to the parking lot during the lease term. When Replacement took possession of the premises, it did not complain about the condition of the parking lot.
        During the lease term, chugholes developed in the asphalt, mostly around the trash dumpster Replacement placed on the property. Chugholes also developed in the area traveled by the trucks to reach the dumpster. Replacement abandoned the premises with ten months left in the term of the lease. Replacement did not pay the rent or the property taxes after abandoning the premises. Replacement did not repair the damage incurred to the parking lot during the lease.
 
SUFFICIENCY OF THE EVIDENCE
        In the sixth point of error, Replacement contends it was entitled to judgment on its DTPA counterclaim against JCD. Replacement argues that the jury's answers to questions 4, 5, and 6 are against the great weight and preponderance of the evidence. We overrule the point insofar as it complains of the trial court's failure to render judgment in Replacement's favor due to the jury's answers being against the great weight and preponderance of the evidence. We do so because answers that are against the great weight and preponderance of the evidence entitle Replacement only to a new trial, not rendition of judgment in its favor. See Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex. 1985) (per curiam). Insofar as Replacement's complaints of the jury's answers being against the great weight and preponderance of the evidence, we examine the testimony at trial.
A. Standard of Review
        In reviewing an insufficient evidence point, we view all the evidence in the record, including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the evidence standing alone is too weak to support the jury's findings or if the jury's answers are so against the overwhelming weight of the evidence that they are manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). The jury is the trier of fact and decides the fact issues by a preponderance of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We cannot pass upon the credibility of the witnesses and substitute our judgment for that of the trier of fact even if there is conflicting evidence that supports a different conclusion. Harco Nat'l Ins. Co. v. Villanueva, 765 S.W.2d 809, 810 (Tex. App.--Dallas 1988, writ denied).
B. Application of Law to the Facts
        In questions 4, 5, and 6, the jury found (4) that JCD did not breach its implied warranty that the leased premises were suitable for Replacement's intended commercial purpose; (5) that the breach of the implied warranty caused no damages to Replacement; FN:1 and (6) that JCD's failure to comply with a warranty (specifically defined as "[f]ailing to perform black top repairs in a good and workmanlike manner") was not a producing cause of damages to Replacement.
        The evidence relevant to question 4, whether JCD breached the implied warranty that the leased premises (including the parking lot) were suitable for Replacement's intended commercial purpose (running a car-rental agency), was conflicting. Replacement's expert testified that the asphalt on the parking lot needed to be about five inches thick to be suitable. He stated that the core samples he took of the parking lot showed it varied in thickness from two inches to four and seven-eighths inches. He said that the thickness of four and seven-eighths inches, toward the center of the parking lot, was close enough to five inches to be suitable.
        JCD's expert testified that the asphalt varied in thickness between two-and-one-half and five-and-one-half inches. From the record we cannot tell which portions or what percentage of the parking lot was of suitable thickness. The five-inch thickness requirement was for "light duty commercial lots and shopping centers." However, the record does not show that a rental-car agency is either a light-duty commercial lot or a shopping center.         Replacement's expert testified that driving cars into and out of the parking lot and parking cars on the lot for a few days would not rut the parking lot. Witnesses testified that the rutting and breaking of the asphalt was due to the garbage dumpster on the premises and the garbage truck that emptied the dumpster. The evidence is conflicting on whether Replacement could have disposed of its garbage using the city's curb-side garbage pick-up service instead of a dumpster.
        A Replacement representative testified that the parking lot was not suitable for the business. Michael Parent, a regional vice president of Replacement during part of the lease period, testified that although there were problems getting through the driveway, those problems did not prevent him from operating the car-rental agency. We hold that the jury's finding that JCD did not breach its implied warranty that the leased premises were suitable for Replacement's intended commercial purpose is not against the great weight and preponderance of the evidence.
        Because the jury found in question 4 that JCD did not breach the implied warranty, the jury should not have answered question 5 about damages. The jury's answer that appellant did not suffer any damages by the breach cannot be against the great weight and preponderance of the evidence when the jury found there was no breach.
        In question 6, the jury found that JCD's failure to perform black-top repairs in a good and workmanlike manner was not a producing cause of damages to Replacement. This question involves two inquiries: (a) whether JCD did not perform black-top repairs in a good and workmanlike manner; and (b) whether that failure was a producing cause of damages to Replacement. JCD's expert testified that the black top repairs were proper. Replacement's expert testified to the contrary. Where the evidence conflicts, we cannot substitute our judgment for that of the jury. Even if JCD did fail in its duty to perform black-top repairs in a good and workmanlike manner, the evidence does not show how Replacement sustained damages.
        No witness testified that Replacement abandoned the premises because the parking lot was useless. Replacement offered no explanation of any other way it suffered damages. One of JCD's witnesses testified that Parent had told him that Replacement moved "because of cheaper rent." We hold that the jury's finding in question 6 was not against the great weight and preponderance of the evidence. We overrule the sixth point of error.
WAIVER OF CONTRACT ACTION
        In the first point of error, Replacement contends the trial court erred in awarding judgment for JCD on its claim for breach of the lease. Replacement contends JCD waived the claim by not requesting any jury issues on the claim. In the second and third points of error, Replacement contends that the trial court erred in awarding JCD attorney's fees because it waived its claim for breach of the lease.
A. Applicable Law
        Rule 279 of the Texas Rules of Civil Procedure provides, "Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived." Tex. R. Civ. P. 279.
        The elements of breach of contract are (1) the existence of the contract sued upon; (2) the plaintiff's compliance with the terms of the contract; (3) the defendant's breach of the contract; and (4) damages because of the breach. Stegman v. Chavers, 704 S.W.2d 793, 795 (Tex. App.--Dallas 1985, no writ); Landrum v. Devenport, 616 S.W.2d 359, 361 (Tex. Civ. App.--Texarkana 1981, no writ). The trial court does not need to present uncontroverted issues to the jury. Transit Enters., Inc. v. Addicks Tire & Auto Supply, Inc., 725 S.W.2d 459, 462 (Tex. App.--Houston [1st Dist.] 1987, no writ); Winn-Dixie Tex., Inc. v. Buck, 719 S.W.2d 251, 253(Tex. App.--Fort Worth 1986, no writ); Martin v. United States Trust Co., 690 S.W.2d 300, 310 (Tex. App.--Dallas 1985, writ ref'd n.r.e.).
B. Application of Law to the Facts
        The parties did not dispute the existence of the lease agreement and its terms. The lease required Replacement to pay rent and the property taxes and to repair the parking lot during the lease term. The parties stipulated that Replacement had not paid rent of $14,100 and unpaid property taxes of $5948.34. The stipulation of the amount of unpaid rent and taxes necessarily stipulates that Replacement did not pay the rent and taxes. Parent testified that Replacement's corporate office instructed him not to repair the parking lot. The jury found that Replacement was responsible for the damages to the parking lot. The jury found that JCD should recover $7,088 for those damages. Replacement abandoned the premises before the end of the term. No witness on Replacement's behalf testified about any reason for Replacement's abandonment of the lease. The parties stipulated to the damages JCD suffered by Replacement's breach in failing to pay rent and property taxes. This evidence conclusively proves all the elements of JCD's cause of action for breach of lease. See Stegman, 704 S.W.2d at 795. Because JCD conclusively established its claim, it was not necessary for the trial court to submit any issues on it. Tex. R. Civ. P. 279; Transit Enters., Inc., 725 S.W.2d at 461-62.
        Replacement cites Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex. 1991), for the proposition that a plaintiff can never recover in a jury trial for breach of contract when no question is requested or submitted to the jury on breach of contract. See Delanney, 809 S.W.2d at 495. Delanney is distinguishable. In Delanney, it is not clear from the court's opinion that DeLanney had conclusively proved his breach of contract claim. Where there is no genuine controversy and only one conclusion can be drawn from the evidence about each element of a claim, the failure to request submission of a ground of recovery does not waive the right to recover on that ground. Transit Enters., Inc., 725 S.W.2d at 461-62. We overrule appellant's first point of error.
        Because JCD did not waive its claim for breach of the lease, the trial court did not err in awarding it attorney's fees. We overrule the second and third points of error.
APPELLATE ATTORNEY'S FEES
        In the fourth point of error, Replacement contends the trial court erred in awarding appellate attorney's fees to JCD because the court did not submit a question on appellate attorney's fees to the jury. JCD prayed for attorney's fees on appeal and presented testimony that a reasonable attorney's fee for an appeal would be four to five thousand dollars. However, the trial court did not submit a question on appellate attorney's fees to the jury. The trial court's judgment awarded JCD $2500 as attorneys fee for an appeal to this Court and $2000 for an appeal to the Texas Supreme Court.
        The amount of attorney's fees is a fact question for the jury. Howell v. Homecraft Land Dev., Inc., 749 S.W.2d 103, 113 (Tex. App.--Dallas 1987, writ denied) (per curiam); Travelers Ins. Co. v. Medi-Rents, Inc., 687 S.W.2d 499, 501-02 (Tex. App.--Houston [14th Dist.] 1985, no writ). JCD's trial counsel's testimony that a reasonable attorney's fee for an appeal would be "[p]robably four to five thousand dollars" is too vague to prove conclusively a reasonable attorney's fee for an appeal.
        Because JCD did not conclusively prove reasonable attorney's fees for the appeal of this case and the trial court did not submit a jury question on appellate attorney's fees, JCD waived its claim for appellate attorney's fees. Tex. R. Civ. P. 279; see Howell, 749 S.W.2d at 113. The trial court erred in awarding appellate attorney's fees. We sustain appellant's fourth point of error. We reform the judgment to delete the award of appellate attorney's fees.
OVERLAPPING PREJUDGMENT AND POSTJUDGMENT INTEREST
        In the fifth point of error, Replacement contends the trial court erred in awarding both prejudgment and postjudgment interest for the same period. The judgment awards prejudgment interest from "March 2, 1990 until the date of judgment," and postjudgment interest "from May 13, 1991." The trial court signed the judgment on October 8, 1991. The judgment awards JCD both prejudgment and postjudgment interest from May 13, 1991, until October 8, 1991. JCD agrees with Replacement that the trial court erred in setting the date that postjudgment interest was to run. We sustain the fifth point of error. We reform the judgment to award prejudgment interest from March 2, 1990, until October 7, 1991, and to award postjudgment interest from October 8, 1991. See Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, §§ 3(a), 6 (Vernon Supp. 1992).
JCD'S CROSSPOINTS
        In its two crosspoints of error, JCD contends that the trial court erred in failing to award it damages because of Replacement's failure to pay property taxes and the damages to the parking lot. As discussed under Replacement's first point of error, JCD proved its breach of contract case as matter of law. The lease agreement required Replacement to pay the property taxes. The parties stipulated that the unpaid property taxes were $5948.34. We hold that the trial court erred in not awarding JCD the stipulated amount for unpaid property taxes. We sustain the first crosspoint of error.
        In question 1, the jury found that Replacement was "responsible for the damages caused to the asphalt parking lot during the term of its occupancy of the leased premises." In question 2, the jury awarded JCD $7088 for damages to the parking lot. These jury findings, along with JCD's proof of its breach of contract as a matter of law entitled it to the damages to the parking lot. We sustain the second crosspoint of error. We reform the judgment to award the $5948.34 in unpaid property taxes and the $7088 for damages to the
parking lot.
        As reformed, we affirm the trial court's judgment.
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
920379M
 
FN:1 The jury was instructed to find damages only if it found that JCD had breached the warranty. Although the jury found that JCD had not breached the warranty, it answered the damages question anyway.
File Date[12-22-92]
File Name[920379F]