Christine Flores Desio D/B/A Professional Center of Grand Prairie and Francis Anthony Desio, Jr. A/K/A Frank Desio, Individually v. Mike Del Bosque D/B/A Injury and Rehab Center in Grand Prairie

Opinion

ACCEPTED 05-19-00224-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/18/2019 5:17 PM LISA MATZ CLERK

No. 05-19-00224-CV

FILED IN COURT OF APPEALS 5th COURT OF APPEALS for the DALLAS, TEXAS FIFTH DISTRICT OF TEXAS 6/18/2019 5:17:50 PM Dallas, Texas LISA MATZ Clerk

CHRISTINE FLOREZ DESIO D/B/A PROFESSIONAL CENTER OF GRAND PRAIRIE AND FRACIS ANTHONY DESIO, JR. A/K/A FRANK DESIO, INDIVIDUALLY, Appellants

v.

MIKE DEL BOSQUE D/B/A INJURY AND REHAB CENTER IN GRAND PRAIRIE, Appellee

Original Proceeding from the 14th Judicial District Court of Dallas County, Texas Honorable Judge Eric V. Moyé, Presiding Trial Court Cause No. DC-17-04408

APPELLEE’S BRIEF

TAILIM SONG LAW FIRM

Tailim Song State Bar No. 00792845 Tel: (214) 528-8400 Fax: (214) 528-8402 8111 Lyndon B. Johnson Freeway Suite 480 Dallas, Texas 75251 Email: tsong@tailimsong.com ATTORNEY FOR APPELLEE

BRIEF OF APPELLEE Page 1 of 42 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rules of Appellate Procedure Rule 52.3(a), Appellee hereby certifies that the following is a complete list of all parties, attorneys, and any other persons who have any interest in the outcome of this lawsuit.

Appellants: Christine Florez Desio d/b/a Professional Center of Grand Prairie and Francis Anthony Desio, Jr. a/k/a Frank Desio, Individually

Counsel for Appellant: BUSH RUDNICKI SHELTON, P.C. Grant A. Bannen State Bar No. 00793300 200 N. Mesquite St., Suite 200 Arlington, Texas 76011 Tel: (817) 274-5992 Fax: (817) 261-1671

Appellees: Mike Del Bosque d/b/a Injury and Rehab Center in Grand Prairie

Counsel for Appellee: TAILIM SONG LAW FIRM TAILIM SONG State Bar No. 00792845 tsong@tailimsong.com JORDAN WHIDDON State Bar No. 24093350 jwhiddon@tailimsong.com 8111 LBJ Freeway, Suite 480 Dallas, Texas 75251 Tel: (214) 528-8400 Fax: (214) 528-8402

BRIEF OF APPELLEE Page 2 of 42 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................. 2 INDEX OF AUTHORITIES........................................................................................................... 4 RECORD REFERENCES .............................................................................................................. 7 STATEMENT OF THE CASE....................................................................................................... 8 STATEMENT OF JURISDICTION............................................................................................... 9 STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 9 ISSUES PRESENTED.................................................................................................................... 9 STATEMENT OF FACTS ........................................................................................................... 10 SUMMARY OF THE ARGUMENT ........................................................................................... 13 ISSUE NUMBER 1: The Trial Court Properly Held that Appellants Breached the Second Floor Leases as there was No Ambiguity as to The Contracts ............................................................... 17 A. Standard of Review ....................................................................................................... 17 B. The Second Floor Leases are Not Ambiguous .............................................................. 18 ISSUE NUMBER 2: The Trial Court Properly Held that Appellants Breached the Second Floor Leases as Appellants Did Not Post Notice Pursuant to Property Code Section 93.002(F) in Addition to Their Contractually Obligated Notice Requirements. ............................................... 21 ISSUE NUMBER 3: The Trial Court Properly Held that There is Not a Specific Contract Provision that Prevails Over General Contractual Provisions. ..................................................... 22 A. Standard of Review ....................................................................................................... 23 B. Appellants Breached the Contract for the First and Second Floor Leases .................. 24 ISSUE NUMBER 5: The Trial Court Properly Held that Appellants Prior Materially Breached and Failed to Mitigate Damages ................................................................................................... 28 ISSUE NUMBER 6: The Trial Court Properly Held that Appellee was Entitled to Reasonable and Necessary Attorney’s Fees Because He was the Prevailing Party ......................................... 29 A. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed On The Indistinguishable Counterclaim. ........................................................................................... 32 B. Attorneys’ Fees Granted Were Reasonable and Not Excessive.................................... 34 ISSUE NUMBER 7: The Trial Court Properly Held That Appellants Tortiously Interfered with the Contract, Tortiously Interfered with prospective Contracts, That Appellants Trespassed on Real Property, and Appellants Committed Conversion ................................................................ 35 CONCLUSION ............................................................................................................................. 40 PRAYER ....................................................................................................................................... 40 CERTIFICATE OF COMPLIANCE ............................................................................................ 41 CERTIFICATE OF SERVICE ..................................................................................................... 41

BRIEF OF APPELLEE Page 3 of 42 INDEX OF AUTHORITIES

Cases

Anderson v. City of Seven Points, 80 S.W. 2d 791, 794 (Tex. 1991). .......................................... 21

Ashcraft v. Lookadoo, 952 S.W. 2d 907, 911 (Tex. App.—Dallas 1997, pet. denied). ................ 21

Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. 948 S.W.2d 293, 299 (Tex. 1997) ...... 36

Ayoub v. Montelongo. 2001 WL 695521 (Tex. App.—El Paso, June 21, 2001, no pet.) ............. 27

Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) ................................................................... 49

Brockie v. Webb, 244 S.W.3d 905 (Tex. App.—Dallas, 2008) .................................................... 41

Cain v. Bain, 709 S.W. 2d 175, 176 (Tex. 1986).......................................................................... 21

Cedar contracting, Inc. v. Hernandez, No. 03-11-00327-CV, 2014 WL 709560, *1, *4 (Tex. App.—Austin Feb. 21, 2014, pet. denied) ................................................................................ 28

Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) ...................................................................... 24

Da Oca v. Gutierrez, No. 03-14-00668-CV, 2017 WL 393569 *4 (Tex. App.—Austin Jan. 25, 2017, no pet.) ............................................................................................................................ 26

De La Rosa v. Kaples, 812 S.W.2d 432, 434 (Tex. App.—San Antonio 1991, writ denied) . 41, 42

F.D.I.C. v. F & A Equip. Leasing, 854 S.W.2d 681, 685 (Tex. App.—Dallas 1993, no writ.) .... 22

Farrar v. Hobby, 113 S.Ct. 566, 506 U.S. 103 (1992) ........................................................... 37, 38

First Wichita National Bank v. Wood, 632 S.W.2d 210 (Tex. App.—Fort Worth 1982, no writ) 41

Frank v. Kuhnreich, 546 S.W.2d 844, 848 (Tex. Civ. App.—San Antonio 1977, writ. ref’d n.r.e.) ................................................................................................................................................... 24

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010) ................................................................... 44

Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.—Austin, 2001) ................................................. 44

Hooker v. Constellation Homebuilder Sys., Inc., 2008 WL 4057909, No. CIV. A. V-06-77, (S.D. Tex. Aug. 26, 2008) .................................................................................................................. 42

Hughs v. Lee, 1997 WL 605080, No. 05-95-0145-CV (Tex. App.—Dallas Oct. 1, 1997) .......... 23

BRIEF OF APPELLEE Page 4 of 42 Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650 (Tex. 2009) ...... 37, 38

Jakab v. Gran Villa Townhouses Homeowners Ass'n, Inc., 149 S.W.3d 863, 867 (Tex. App.— Dallas 2004, no pet.) ................................................................................................................. 20

Lakeside Vill. Homeowners Ass'n, Inc. v. Belanger, 545 S.W.3d 15, 36 (Tex. App. 2017) ......... 49

McConnell v. Coventry Health Care Nat'l Network, No. 05-13-01365-CV, 2015 WL 4572431, (Tex. App. July 30, 2015) ......................................................................................................... 47

Metroplex Glass Cent., Inc. v. Vantage Props., Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 1983, writ refused n.r.e.) ........................................................................................................... 48

Moreno v. Reliable Insulation, Inc., 217 S.W.3d 769, 770-71 (Tex. App.—Dallas, 2007) ......... 44

Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196, 198 (Tex. 2004) (per curiam) ...................................................................................................................................... 35

Navigant Consulting, Inc. v. Wilkinson. 208 F.3d 277, 298 (5th Cir. 2007) ................................ 40

Ortiz v. O.J. Beck and Sons, Inc., 611 S.W.2d 860 (Tex. App.—Corpus Christi 1980, no writ.) 41

Paragon Gen. Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.) ............................................................................................................................ 30

Ponderosa Pine Energy, LLC v. Illinova Generating Co., No. 05-15-00339-CV, 2016 WL 3902559 (Tex. App.—Dallas July 14, 2016, no pet.) ............................................................... 22

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) ................ 46

R&P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980) .................... 23

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990) .......................... 44

Scott Pelley P.C. v. Wynne, No. 05–15–01560–CV, 2017 WL 3699823, (Tex. App.—Dallas Aug. 28, 2017, pet. denied) .......................................................................................................... 22, 51

Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex. 1966). ............................... 23, 25

Small v. Parker Healthcare Mgmt. Org., No. 05-11-01471-CV, 2013 WL 5827822, (Tex. App.— Dallas, Oct. 29, 2013) ............................................................................................................... 21

Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009)............................................... 37

Tony Gullo Motos I, L.P. v. Chapa, 212 S.W.3d, 50 Tex. Sup. Ct. J. 278 (Tex. 2006) ......... 40, 41

BRIEF OF APPELLEE Page 5 of 42 Trudy’s Texas Star, Inc. v. City of Austin, 307 S.W.3d 894 (Tex. App.—Austin 2010, no pet.) . 28

Tuttle v. Builes, 2019 WL 1301881, No. 11-17-00096-CV, (Tex. App.—Eastland, 2019) ......... 37

Veale v. Rose, 657 S.W.2d 834, 841 (Tex. App.—Corpus Christi-Edinburg 1991, writ denied) 41, 42

Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428, (Tex. Apr. 26, 2019) ............................................................................................................................................. 43, 45

Wells Fargo Bank Minnesota, N.A. v. Kobernick, No. 8-CV-1458, 2009 WL 7808949, (S.D. Tex. May 29, 2009) ........................................................................................................................... 28

Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied)............ 49

Wilkins v. Bain, 615 W.S.2d 314 (Tex. Civ. App.—Dallas 1981, no writ) .................................. 41

Williamson v. Tucker, 615 S.W.2d 881 (Tex. App.—Dallas 1981, writ ref’d n.r.e.) ................... 41 Statutes

TEX. PROP. CODE § 93.002(c) ............................................................................................ 32, 50

TEX. PROP. CODE § 93.002(f) ..................................................................... 17, 25, 26, 27, 32, 33

V.T.C.A., Civil Practice & Remedies Code § 38.001 ............................................................ 37, 41

BRIEF OF APPELLEE Page 6 of 42 RECORD REFERENCES

The Record citing conventions contained below are used throughout this Brief of

Appellee.

___ CR ___, ¶ ___. The Clerk’s Record (The first blank is the volume number, the

second blank is the page number that the document begins, and the

third blank is the pinpoint cite e.g., 1 CR 4, ¶ 5-6).

___ RR p.___, line___. The Reporter’s Record from the Jury Trial (The first blank is the

volume number and the second blank is the page number(s) and

line number(s) e.g., 1 RR p. 20, lines 12-20.)

Ex. P-___. Appellant/Plaintiff’s exhibits to the Reporter’s Record

BRIEF OF APPELLEE Page 7 of 42 STATEMENT OF THE CASE

Nature of The case on appeal concerns the Appellants’ breach of the Case: their contracts as contained in their First and Second Floor Leases with Appellee as well as Appellants’ violations of Texas Property Code notice provisions.

Final Judgment The Honorable Eric V. Moyé, Judge Presiding, signed the Final signed by: Judgment on December 19, 2018. C.R. 446-448. The Honorable Eric V. Moyé, Judge Presiding, entered Findings of Fact and Conclusions of Law on January 18, 2019. C.R. 545-461.

Trial Court: 14th Judicial District Court, Dallas County, Texas

Final On November 13, 2018, the trial court, the Honorable Eric V. disposition by Moyé, Judge Presiding, presided over the bench trial in this matter. Trial Court: 2 R.R. 1. On December 19, 2018, the Honorable Eric V. Moyé heard Appellee’s Motion for Entry of Judgment and signed the Final Judgment presented by Appellee at the hearing. C.R. 446. On January 18, 2019, the trial court enter Findings of Fact and Conclusions of Law. On March 8, 2019, Appellants requested additional findings of fact and conclusions of law which were contrary to the trial court’s findings and were thereby denied.

BRIEF OF APPELLEE Page 8 of 42 STATEMENT OF JURISDICTION

This Court has jurisdiction to hear this appeal under Texas Constitution Article 5, Section

6 and under Texas Government Code Section 22.220.

STATEMENT REGARDING ORAL ARGUMENT

Appellee respectfully requests oral argument in this case, as it may aid the Court in determining

the issues presented. Tex. R. App. P. 39.7. This Case raises significant issues related to breach of

contract and violations of the Texas Property Code. Additionally, this case addresses issues of

contract interpretation and the awarding of attorneys’ fees. Oral argument would afford the Court

the opportunity to question the parties and reach a decision on these matters.

ISSUES PRESENTED

1. The Trial Court Properly Held that Appellants Breached the Second Floor Leases as there was No Ambiguity as to The Contracts. a. Standard of Review b. The Second Floor Leases are Not Ambiguous

2. The Trial Court Properly Held that Appellants Breached the Second Floor Leases as Appellants Did Not Post Notice Pursuant to Property Code Section 93.002(F) in Addition to Their Contractually Obligated Notice Requirements.

3. The Trial Court Properly Held that There is Not a Specific Contract Provision that Prevails Over General Contractual Provisions.

4. Appellants Breached the Contract for the First and Second Floor Leases When They Intentionally Deprived Appellee from Entering the Leasehold and Appellee Could No Longer Enjoy the Use of The Leasehold.

a. Standard of Review b. Appellants Breached the Contract for the First and Second Floor Leases

5. The Trial Court Properly Held that Appellants Prior Materially Breached and Failed to Mitigate Damages.

6. The Trial Court Properly Held that Appellee was Entitled to Reasonable and Necessary Attorney’s Fees Because He was the Prevailing Party

BRIEF OF APPELLEE Page 9 of 42 a. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed on The Indistinguishable Counterclaim b. Attorneys’ Fees Granted Were Reasonable and Not Excessive

7. The Trial Court Properly Held That Appellants Tortiously Interfered with the Contract, Tortiously Interfered with prospective Contracts, That Appellants Trespassed on Real Property, and Appellants Committed Conversion

STATEMENT OF FACTS

Mike DelBosque d/b/a Injury and Rehab Center (“Appellee”) had a commercial lease for

Suite 101 (“First Floor Lease”) and three written commercial leases for Suite 200-202, Suite 206,

and Suite 207/208 (collectively “Second Floor Leases”) with Appellants Christine Florez Desio

d/b/a Professional Center of Grand Prairie. Appellant Francis Anthony Desio was the agent of Ms.

Florez Desio and property manager of all the relevant Premises and corresponding leases

(hereinafter, collectively, “Appellants”).

The Second Floor Leases were written contracts drafted by Appellants. In the Second

Floor Leases, Section 13.5 of the Second Floor Leases defined abandonment as “[f]ailure of Tenant

for five (5) days or more to occupy the Premises for one or more of the purposes permitted under

this Lease, unless such failure is excused under other provisions of this Lease.” 4 RR p. 180.

Section 13.3 further provided that “[f]ailure of Tenant to comply with any term or condition or

fulfill any obligation of the lease (other than the payment of rent or other charges) within twenty

(20) days after written notice by Landlord specifying the nature of the default with reasonable

particularity.” 4 RR p. 179. Thus, the contract only excepted the twenty (20) day notice

requirement and opportunity to cure for failure to pay rent and no other reasons.

On November 28, 2016, prior to sending any written or other notice, Appellants locked the

Appellee out of the leasehold by changing the locks on the doors to the Second Floor Leases.

Appellants’ sole basis for the lockout out was alleged abandonment. 2 RR p. 47. Appellants

BRIEF OF APPELLEE Page 10 of 42 testified Appellee still had personal property in the leasehold at the time of lockout. 2 RR p. 16.

Remaining items included, but are not limited to, three refrigerators, a copy machine, office

furniture, and office supplies. 1 CR 455, ¶ 7. Following the lockout, Appellants then called the

scrapyard to retrieve and dispose Appellee’s personal property despite Appellee orally telling

Appellants he intended to retrieve possession of the property. 2 RR p. 29-31.

Additionally, Appellee testified he never intended to move out. 2 RR p. 79. Appellee even

offered to continue to pay rent for the Second Floor Leases. 2 RR p. 31, lines 102-103. Appellee

never at any time received a request for payment of further rent and never received his deposits

back. 2 RR p. 103. Only after the lockout and refusal by Appellants to provide the benefit of the

property did Appellee fail to pay rent for January. 2 RR p. 104. At the time of the lockout, Appellee

was current on rent and had even prepaid the entire rent due for the month of December. 1 CR 455,

¶ 6. Additionally, at the time of the lockout, Appellee had not abandoned the property. 1 CR 455,

¶ 15. He did not leave the leases unoccupied. Id.

Following the November 30th lockout, Appellee was refused access to the Second Floor

Leases and refused new keys. 1 CR 456, ¶ 20-22; 2 RR p. 31, 50. Further, the security deposits of

the Second Floor Leases were never returned to Appellee. 2 CR 457, ¶ 31. Also, there was no

evidence presented that Appellants attempted to mitigate their alleged damages. 2 RR p. 108.

Landlord thereby breached the Second Floor Leases pursuant to the express contracts

between the parties contained in the First Floor Lease and Second Floor Leases when it

prematurely locked out Appellee for alleged abandonment even though five (5) days had not

passed and no notice or opportunity to cure was provided. Appellant Francis Anthony Desio

admitted at trial that he never gave Appellee notice or opportunity to cure. 2 RR p. 70. Appellee

BRIEF OF APPELLEE Page 11 of 42 testified at trial that he never received notice of default or an opportunity to cure. 2 RR p. 32, lines

105-106.

Written notices of default were not posted until January 21, 2017—fifty-two (52) days after

Appellants locked out Appellee. 1 CR 456, ¶ 21; 2 RR p. 25. Even when these notices were posted,

they did not identify abandonment as the reason for lockout or default. Appellant Francis Anthony

Desio conceded that this notice did not give the contractually agreed to twenty (20) day notice to

cure. 2 RR p. 112.

On March 30, 2017, Appellants locked Appellee out of the First Floor Lease. 1 CR 457, ¶

35. At the time of the lockout, Appellee was current on rent and otherwise not in default. 1 CR

457, ¶ 36-37. Additionally, at the time of lockout, Appellants gave no written notice and no contact

information for an individual or business from whom a new key could be retrieved. 1 CR 457, ¶

36. Appellee was forced to obtain a writ of reentry. 2 RR p. 43. Appellee then sought a temporary

restraining order to resume operations. 2 RR p. 44.

Following the issuance of a temporary restraining order and writ of reentry, Appellants

again locked Appellee out of the First Floor Lease. 2 RR p. 44. On April 12, 2017, Appellants

forced healthcare professionals, staff, and their patients to leave the first-floor leasehold. 1 CR

457, ¶ 41. Appellants then chained the door shut with a large metal chain and padlock. 1 CR 457,

¶ 42. On April 13, 2017, Appellee’s marquee sign was removed by Appellants. 1 CR 457, ¶ 43.

Appellants retained the entirety of the First Floor Lease’s security deposit, totaling $2,552.00. 1

CR 458, ¶ 50. Further, as a result of these lockouts, Appellee was damaged as he lost clients and

business. Patients were locked out and Appellee was not able to get the patients again. 2 RR p. 83-

85.

BRIEF OF APPELLEE Page 12 of 42 The trial court found in favor of Appellee and as the prevailing party, Appellee was entitled

to attorney’s fees.

SUMMARY OF THE ARGUMENT

The trial court properly held that Appellants breached the Second Floor Leases as there was

no ambiguity as to the contract between Appellee and Appellants as contained in the Second Floor

Leases. Pursuant to the Second Floor Leases, Appellants breached the Second Floor Leases when

Appellants locked out Appellee and Appellee was not given notice or an opportunity to cure the

Second Floor Leases prior to the lockout.

Section 13.3 of the Second Floor Leases that was prepared by Appellants explicitly states,

“[f]ailure of Tenant to comply with any term or condition or fulfill any obligation of the lease (other than the payment of rent or other charges) within twenty (20) days after written notice by Landlord specifying the nature of the default with reasonable particularity.”

Abandonment is an example of such “[f]ailure of Tenant to comply with any term or

condition or fulfill any obligation of the lease (other than the payment of rent or other charges).”

However, Appellants ask the Court to disregard the contract and intentionally exclude

abandonment from the notice requirement that was contractually provided for in Section 13.3.

Appellants argue that because Section 13.3 does not expressly state “abandonment,” that

abandonment should not be considered an event of default. But, there is no ambiguity here as

Appellants suggest. Abandonment is an event of default, other than payment of rent or other

charges, and as such, Appellants were required to give notice of default and an opportunity to cure

to Appellee for his alleged abandonment of the Second Floor Leases. Appellants’ interpretation

would read the express notice provision out of the lease.

BRIEF OF APPELLEE Page 13 of 42 Further, Section 13.5 does not excuse Landlord’s obligation to provide written notice of

default. Section 13.5 states,

“[f]ailure of Tenant for five (5) days or more to occupy the Premises for one or more of the purposes permitted under this Lease, unless such failure is excused under other provisions of this Lease.”

The trial court did not add language to the contract as Appellants suggest. Rather, the trial

court upheld the express language of the contract. Appellants make the argument that there is no

notice requirement because Section 13.5 does not provide for a twenty-day notice. However,

Sections 13.3 and 13.5 should be and were construed together. Read together, the five-day period

prescribed in Section 13.5 does not become irrelevant as Appellants suggest. Rather, Section 13.5

defines abandonment as a “[f]ailure of Tenant for five (5) days or more to occupy the Premises”

and once Tenant has failed to occupy the Premises for over five (5) days, it would be a deemed a

default, thereby mandating the notice requirement outlined in Section 13.3.

In the alternative, should the Court find that there are any doubts as to the meaning of the

language of the lease, it should be resolved against the Appellants.

Appellants also did not comply with Property Code 93.002(f), which is consistent with the

Second Floor Leases. Property Code 93.002(f) requires that a written notice be place on the tenant's

front door stating the name and the address or telephone number of the individual or company

from which the new key may be obtained. However, here, notice was not provided as prescribed

by the Property Code in addition to Appellants’ failure to comply with its contractually obligated

notice requirements. In fact, Appellants admitted no notice was posted pursuant to Property Code

93.002(f). 2 RR p. 33, lines 2-4.

Additionally, the present case does not deal with conflicting contractual provisions in

which there is a specific contract provision that prevails over general contractual provisions.

BRIEF OF APPELLEE Page 14 of 42 Sections 15.3 and 15.5 of the Second Floor Leases are not conflicting. There is no language

expressly stating that abandonment shall constitute default without the notice required by Section

15.3 or imposing an alternate notice requirement. The contract is clear. Abandonment is the

“[f]ailure of Tenant for five (5) days or more to occupy the Premises” and in addition,

abandonment is an event of default that is not for the payment of rent or other charges for which a

twenty (20) day written notice specifying the nature of the default with reasonable particularity

required. The fact that Section 15.5 does not contain its own specific notice provision is not

sufficient to overcome the notice provision prescribed by Section 15.3.

Therefore, the trial court properly held that Appellants breached the Section Floor Leases

when the trial court found notice of termination was sent post lock out and ineffective as a matter

of law and the fact that Appellants sent notice after the fact insinuates that Appellants also believed

there was notice requirement. Because Appellants committed prior material breach and on the

Second Floor leases prior to Appellee allegedly abandoning the leasehold, the trial court properly

found that Appellee did not breach the Second Floor Leases and that Appellants were the breaching

party.

The trial court properly held that Appellants committed prior material breach of the Second

Floor Leases, which discharged or excused Appellees from further performance. Appellants

prematurely locked out Appellee for alleged abandonment even though five (5) days had not

passed and no notice or opportunity to cure were provided thereby breaching the Second Floor

Leases. As a result, Appellee was unable to operate its business and lost current and prospective

patients.

The trial court properly held that Appellants failed to mitigate damages. Appellants never

presented any evidence that they attempted to mitigate damages. As such, because of Appellants’

BRIEF OF APPELLEE Page 15 of 42 failure to reasonably attempt to mitigate damages, Appellants cannot recover against Appellee in

that regard.

The trial court properly held that Appellee was entitled to attorneys’ fees and that the

attorneys’ fees granted were reasonable and not excessive. Appellee is entitled to recover

attorney’s fees as the prevailing party because the trial court’s final judgment found in favor of

Appellee and granted Appellee equitable relief. In this case, fee recovery is authorized by both

under Texas Civil Practices and Remedies Code and by the express contract between Appellants

and Appellee. Alternatively, Appellee had no obligation to segregate attorney’s fees because the

claim and counterclaim were recoverable and indistinguishable.

The trial court found Appellants liable to Appellee for tortious interference, trespass on

real property, and conversion. The trial court properly held that Appellants tortiously interfered

with Appellee’s existing contracts and prospective contracts by unlawfully locking out Appellee

from his leaseholds, which proximately caused Appellee to lose potential patients and business

opportunities. Further, the trial court properly held that Appellants trespassed on real property

when it went onto Appellee’s leasehold while Appellee was current on rent, locked Appellee out,

and called the scrapyard to retrieve and dispose Appellee’s personal property despite Appellee

orally telling Appellants he would come back to retrieve the property. 2 RR p. 29-31.

The trial court also properly held that Appellants committed conversion in wrongfully

retaining Appellee’s personal property. Appellants wrongfully locked Appellee out of his

leasehold despite knowing Appellee still had personal property in the leasehold at the time of

lockout. 2 RR p. 16. Remaining items included, but are not limited to, three refrigerators, a copy

machine, office furniture, and office supplies for the purposes of storage. 1 CR 455, ¶ 7. Following

the lockout, Appellants then called the scrapyard to retrieve and dispose Appellee’s personal

BRIEF OF APPELLEE Page 16 of 42 property despite Appellee orally telling Appellants he would come back to retrieve the property. 2

RR p. 29-31.

Therefore, for the aforementioned reasons, the trial court’s Final Judgment should be affirmed.

ARGUMENTS AND AUTHORITIES

ISSUE NUMBER 1: The Trial Court Properly Held that Appellants Breached the Second Floor Leases as there was No Ambiguity as to The Contracts

A. Standard of Review

The standard of review urged by the Appellant is the wrong standard of review. Appellants

encourage the Court to apply a de novo standard to the conclusions of law that the trial court found.

However, contract interpretation is a question for the factfinder, and generally the Court should

“not disturb the trial court’s finding absent an abuse of discretion.” Jakab v. Gran Villa

Townhouses Homeowners Ass'n, Inc., 149 S.W.3d 863, 867 (Tex. App.—Dallas 2004, no pet.)

Appellants are not asking for contract construction which would be considered under a de novo

standard of review. Rather, Appellants ask that the Court find that the trial court erred in its

findings. Therefore, the standard of review is abuse of discretion, not de novo.

In addition, findings of fact entered in a bench trial may be reviewed for legal and factual

sufficiency. Ashcraft v. Lookadoo, 952 S.W. 2d 907, 911 (Tex. App.—Dallas 1997, pet. denied).

“[They] have the same force and dignity of a jury’s verdict upon questions” and are only

reviewable by the same standards of the sufficiency of the evidence supporting a jury’s finding.

See Anderson v. City of Seven Points, 80 S.W. 2d 791, 794 (Tex. 1991).

When reviewing for factual sufficiency of the evidence, “the court of appeals must

consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709

BRIEF OF APPELLEE Page 17 of 42 S.W. 2d 175, 176 (Tex. 1986). Importantly, appellate courts shall not substitute their judgment

for the fact finder’s even if they would have personally decided differently, as the trial court must

be the sole judge of credibility of witnesses and weight to be afforded to the evidence. See Small

v. Parker Healthcare Mgmt. Org., No. 05-11-01471-CV, 2013 WL 5827822, at *3 (Tex. App.—

Dallas, Oct. 29, 2013) (mem. op.) (citing Ashcroft, 952 S.W.2d at 910).

When reviewing for legal sufficiency of the evidence, the court is to “consider only the

evidence and inferences, viewed in the most favorable light, that support the finding, and [the

court] must disregard all evidence and inferences to the contrary; If there is more than a scintilla

of evidence to support the finding, the legal sufficiency challenge fails.” F.D.I.C. v. F & A Equip.

Leasing, 854 S.W.2d 681, 685 (Tex. App.—Dallas 1993, no writ.) (internal citations omitted).

Meaning, if there is a reasonable basis for differing conclusions, there is more than a scintilla of

evidence and the Appellee must prevail. See id.

As to unchallenged findings, they are “binding on the parties and the appellate court.”

Ponderosa Pine Energy, LLC v. Illinova Generating Co., No. 05-15-00339-CV, 2016 WL

3902559 at *3 (Tex. App.—Dallas July 14, 2016, no pet.). Where there is a complicated and

substantial record from the trial court, the challenging party should attack the Findings of Fact

with specificity and should be supported by the evidence. Scott Pelley P.C. v. Wynne, No. 05-15-

01560-CV, 2017 WL 3699823 at *6 (Tex. App.—Dallas, August 29, 2017) reh’g denied (Sept.

29, 2017), review denied (Jan. 12, 2018). However, “where a party’s issue globally attacks the trial

court’s Finding of Fact…the Finding of Fact issued by the Trial Court are binding on the appellate

court.” Id. at *7.

B. The Second Floor Leases are Not Ambiguous

BRIEF OF APPELLEE Page 18 of 42 The Second Floor Leases are not ambiguous as a matter of law. Further, Appellants

prepared the Leases for the Second Floor. Section 13.3 unambiguously states, “[f]ailure of Tenant

to comply with any term or condition or fulfill any obligation of the lease (other than payment of

rent or other charges) within twenty (20) days after written notice by Landlord specifying the

nature of the default with reasonable particularity.” [emphasis added]. 3 RR p. 45. The Second

Floor Leases further provide, “[f]ailure of Tenant to comply with any term or condition or fulfill

any obligation of the lease (other than the payment of rent or other charges).” 3 RR p. 45.

A contract is not ambiguous when a certain or definite legal meaning or interpretation may

be applied. See R&P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980).

A contract is ambiguous only in the case that after the applicable rules are applied, the contract is

still reasonably susceptible to more than one meaning. See Hughs v. Lee, 1997 WL 605080, No.

05-95-0145-CV at * 2 (Tex. App.—Dallas Oct. 1, 1997). Notably, a contract is ambiguous only

when it is “genuinely uncertain which one of the two meanings is the proper meaning.” See R&P

Enters., 596 S.W.2d at 519.

It is well established that leases are most strongly construed against the lessor. Sirtex Oil

Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex. 1966). A lease, like other written agreements,

should also be given a reasonable construction that carries out the intention of the parties expressed

by the language of the contract. Frank v. Kuhnreich, 546 S.W.2d 844, 848 (Tex. Civ. App.—San

Antonio 1977, writ. ref’d n.r.e.). The contents of a written contract must be “construed as a unified

whole unless they are so repugnant and inconsistent as to nullify each other.” See id. at 848. When

appropriate, Courts have found contracts where the meaning and intentions of the parties becomes

clear only when clauses are read together. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).

BRIEF OF APPELLEE Page 19 of 42 Therefore, there is precedent for reading sections together to create an unambiguous contract. See

id.

Here, Appellants have no basis to argue that the Second Floor Leases are ambiguous. The

language of the Second Floor Leases clearly expresses the parties’ intentions. The trial court did

not add language to the contract as Appellants suggest. Rather, the trial court upheld the express

language of the Second Floor Leases. 3 RR 45.

The notice and cure provision of the Second Floor Leases are unambiguous and supported

by the Final Judgment, Findings of Fact, Conclusions of Law, and the trial evidence. Section 13.5

defines abandonment as “tenant failing to occupy for five or more days the premises…”. 1 CR

455, ¶ 16. Construed together, “abandonment” is an event of default other than for payment of rent

or other charges, and therefore, Section 13.3 requires that a landlord give the tenant notice of the

default on the property and twenty (20) days opportunity to cure the default. 1 CR 454, ¶ 5. Thus,

Appellants had the responsibility to give Appellee notice of the alleged default prior to changing

the locks on the Second Floor Leasehold and was required to wait another 20 days for Appellee to

cure the alleged default. 1 CR 455, ¶ 11-12. However, this is not how the Appellants acted.

Appellants prematurely locked Appellee out of the Second Floor Leasehold and failed to provide

notice to Appellee until fifty-two (52) days later, when Appellants alleged the incorrect default for

“failing to pay January rent.” 1 CR 455, ¶ 7-9; 1 CR 456, ¶ 21.

In the alternative, should the Court find that there are any doubts as to the meaning of the

language of the Second Floor Leases, it should be resolved against the landlord, the Appellants,

who prepared the Leases. See Sirtex Oil Industries, 403 S.W.2d at 788. Thus, the trial court

properly found the Second Floor Leases to be unambiguous and that the Appellants breached the

Second Floor Leases by locking Appellee out when Appellee was not in default of the Second

BRIEF OF APPELLEE Page 20 of 42 Floor Leases. 1 CR 455, ¶ 11; 1 CR 459, ¶ 2-6. The holding was proper, and the Court should

uphold the trial court’s Final Judgment.

ISSUE NUMBER 2: The Trial Court Properly Held that Appellants Breached the Second Floor Leases as Appellants Did Not Post Notice Pursuant to Property Code Section 93.002(F) in Addition to Their Contractually Obligated Notice Requirements.

Appellants failed to comply with Property Code Section 93.002(f) when they did not post

notice of default until fifty-two (52) days after Appellants prematurely changed the locks on the

Second Floor leaseholds, which is required by the Texas Property Code.

Property Code § 93.002(f) states:

If a landlord or a landlord's agent changes the door lock of a tenant who is delinquent in paying rent, the landlord or agent must place a written notice on the tenant's front door stating the name and the address or telephone number of the individual or company from which the new key may be obtained. The new key is required to be provided only during the tenant's regular business hours and only if the tenant pays the delinquent rent.

[emphasis added]. TEX. PROP. CODE. § 93.002(f).

Property Code § 93.002(f) imposes an additional requirement to the 20-day notice and

opportunity to cure as provided in the Second Floor Leases. 1 CR 459, ¶ 18. In Da Oca v. Gutierrez,

the court found that when there is no delinquent rent, lockout procedures were not proper. See No.

03-14-00668-CV, 2017 WL 393569 *4 (Tex. App.—Austin Jan. 25, 2017, no pet.). In this case,

Appellee was current on paying rent when Appellants locked Appellee out of the Second Floor

leasehold. 1 CR 459, ¶ 2-3, 6; 1 CR 455, ¶ 6. Here, Appellee had prepaid rent for December 2016

at the time of the lockout. 1 CR 455, ¶ 6. Appellants allege, after finally posting notice fifty-two

(52) days after the lockout, that they changed the locks on the Second Floor leasehold because

Appellee failed to pay January rent. 1 CR 456, ¶ 21-22. However, this timing of the lockout and

the alleged default does not make logical sense—a lockout at the end of November 2016 does not

BRIEF OF APPELLEE Page 21 of 42 align with failing to pay January 2017 rent. Therefore, Appellants cannot reasonably contend that

Appellants had the right to change the locks on the Second Floor leaseholds for failing to pay rent.

To add to Appellants’ failures, Appellants did not post notice in November 2016 when

Appellants changed the locks on the Second Floor leaseholds. Even if Appellee had defaulted on

the Second Floor Leases, Appellants did not post notice until January, fifty-two (52) days

following the lockout. 1 CR 455, ¶ 9; 1 CR 456, ¶ 21. In fact, Appellants admitted no notice was

posted prior to lockout pursuant to Property Code § 93.002(f). 1 CR 456, ¶ 12. Therefore,

Appellants failed to meet their duties pursuant to the contract and the Property Code. 1 CR 456, ¶

12.

In support of their erroneous contention that the Property Code § 93.002(f) does not apply,

Appellants cite to Ayoub v. Montelongo. 2001 WL 695521 (Tex. App.—El Paso, June 21, 2001,

no pet.) (not designated for publication). However, Ayoub is readily distinguishable because in that

case, the parties did not contractually agree to a twenty (20) day notice and opportunity to cure

requirement in their lease. See id. Additionally, at issue in Ayoub was that the tenant “was going

broke” and was delinquent in rent. See id. In the present case, at the time of lockout, Appellee was

not delinquent on rent, and there was no evidence of financial instability. 2 RR p. 13, 28; (1 CR

455, ¶¶ 6, 13, 14.)

ISSUE NUMBER 3: The Trial Court Properly Held that There is Not a Specific Contract Provision that Prevails Over General Contractual Provisions.

The trial court found that there is no prevailing, specific provision because Sections 13.3

and 13.5 should be read together. See 1 CR 455, ¶ 11. “Abandonment” is an event of default for

which the landlord is required to provide notice and twenty (20) days opportunity to cure. Neither

of these provisions conflict with one another nor should one be read as more specific than the

other.

BRIEF OF APPELLEE Page 22 of 42 Appellants cite to authorities that are distinguishable from the case at hand. Specifically,

Appellants cite to Wells Fargo Bank Minnesota, N.A. v. Kobernick, which deals with two

conflicting terms—a provision with a notice requirement for default and a provision that excepts

a particular event. No. 8-CV-1458, 2009 WL 7808949, *1-4 (S.D. Tex. May 29, 2009). Similarly,

Appellants cite to Cedar contracting, Inc. v. Hernandez, where the court considered a “thirty-day

notice requirement” and a conflicting “ten-day notice requirement.” No. 03-11-00327-CV, 2014

WL 709560, *1, *4 (Tex. App.—Austin Feb. 21, 2014, pet. denied) (mem. op.). Trudy’s Texas

Star, Inc. v. City of Austin also specifically concerns conflicting provisions. See generally Trudy’s

Texas Star, Inc. v. City of Austin, 307 S.W.3d 894 (Tex. App.—Austin 2010, no pet.).

In this case, Sections 13.3 and 13.5 are not conflicting, and are thus distinguishable from

the cases that Appellants cited. There is no language expressly stating that “abandonment” shall

constitute default without the notice required by Section 13.3 and there is no alternate notice

requirement as provided for abandonment. 3 RR p. 45. Abandonment is the “[f]ailure of Tenant

for five (5) days or more to occupy the Premises.” 1 CR 455, ¶ 16. An event of default that is not

for the payment of rent or other charges requires a twenty (20) day written notice specifying the

nature of the default with reasonable particularity is required. 1 CR 454, ¶ 5. The fact that Section

13.5 does not contain a notice provision is not sufficient to overcome the notice provision

prescribed by Section 13.3.

ISSUE NUMBER 4: Appellants Breached the Contract for the First and Second Floor Leases When They Intentionally Deprived Appellee from Entering the Leasehold and Appellee Could No Longer Enjoy the Use of The Leasehold

Appellants are asking the Court to reverse the judgment despite the great weight and

preponderance of the evidence. The trial court found notice of termination was sent post lockout

BRIEF OF APPELLEE Page 23 of 42 and ineffective as a matter of law. See 1 CR 455, ¶ 12; 1 CR 456, ¶ 21. The fact that Appellants

sent notice after the fact insinuates that the Appellants also believed that a notice requirement

existed. Id.

B. Appellants Breached the Contract for the First and Second Floor Leases

Appellants are liable for breaching the contracts Appellee and Appellants had for the First

Floor and Second Floor Leases. “The elements for breach of contract are (1) the existence of a

valid contract, (2) the plaintiff's performance or tendered performance, (3) the

defendant's breach of the contract, and (4) damages as a result of the breach.” Paragon Gen.

Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.).

The trial court found that there were valid Leases between Appellee and Appellants for the

First and Second Floor Leases. 1 CR 459, ¶ 1. Regarding the Second Floor Lease, Appellee

tendered his performance under the contract when he paid for November 2016 rent and prepaid

for December 2016. 2 RR p. 13, ¶ 5. The Court found that Appellants breached the Second Floor

Lease by unlawfully locking Appellee out of the leasehold when Appellee still had personal

property on the leasehold, had paid for the leasehold in full, and was not in default for the leasehold

in any other way. 1 CR 459, ¶ 2-3, 6.

Appellee gave notice to Appellants that he would be moving some things from the Second

Floor Lease leasehold on November 28, 2016. 1 CR 455, ¶ 7-8. Appellee even told Appellants that

he intended to continue paying for the Second Floor Lease. 1 CR 455, ¶ 8. Appellants breached

the Second Floor Lease when Appellants changed the locks on November 30, 2016. 1 CR 455, ¶

9. Appellants claim that their entering the leasehold, rekeying the locks, and alleged that throwing

away Appellee’s personal property was justified because Appellee had abandoned the Property. 2

RR p. 47, lines 4-7. However, Section 13.5 in the Second Floor Leases expressly defines

BRIEF OF APPELLEE Page 24 of 42 “abandonment” as the tenant failing to occupy for five or more days the premises for one or more

of the purposes permitted under this lease. 1 CR 455, ¶ 15-16 [emphasis added]. Appellee had not

abandoned the leasehold at the time of the lockout because it had only been two (2) days of

unoccupancy over a holiday weekend that Appellants changed the locks. Id.; See 1 CR 455, ¶ 7, 9,

15.

Additionally, even if Appellee defaulted by abandonment, the Second Floor Lease required

Appellants give Appellee written notice specifying the nature of their default and twenty (20) days

to cure the default. 1 CR 459, ¶ 18. However, Appellants did not provide notice. Thus, the trial

court reasonably concluded that Appellants breached and therefore Appellee was justified for

discontinuing to pay rent for the remainder of the Second Floor Leases (1 CR 459, ¶ 14) when

Appellants had locked Appellee out, threw away his personal property, and did not give him any

way to remedy the alleged default. 1 CR 456, ¶ 18-20. Further, Appellants did not give notice to

Appellee how to regain entry onto the leasehold and thereby breached the Second Floor Leases. 1

CR 456, ¶ 20; 1 CR 459, ¶ 13.

The evidence clearly establishes that Appellee did not abandon, Appellee did not breach,

Appellants locked Appellee out, and thus the Appellants breached the Second Floor Lease. 1 CR

455, ¶ 7-9; 1 CR 459, ¶ 2-3, 6, 13. Appellee was current on all rent payments, had prepaid rent for

the following month, and that Appellants unlawfully locked Appellee out of the Second Floor

leaseholds without providing any notice. 1 CR 455, ¶ 6; 1 CR 459, ¶ 2-3; 1 CR 459, ¶ 18; 1 CR

456, ¶ 29. Evidence establishes that Appellee did not fail to occupy the Second Floor leasehold for

more than five (5) days because he still had personal property on the leasehold and told Appellants

that he would return for the property. 1 CR 455, ¶ 7-9. Moreover, because Appellee made it clear

BRIEF OF APPELLEE Page 25 of 42 that he intended to continue to occupy the Second Floor leaseholds when he told Appellants that

he would continue to make rent payments for the Lease term. Id.

With respect to the First Floor Lease, the trial court found that Appellants unlawfully

locked Appellee out of the First Floor Lease on March 30, 2017. 1 CR 457, ¶ 35. Appellee was

current on rent for the First Floor Lease and was otherwise not in any other default for the

leasehold. 1 CR 460, ¶ 29-30. According to their Lease, Appellants agreed to provide “exclusive,

quiet, peaceable and undisturbed and uninterrupted possession of the leased premises during the

term of [the] Texas Commercial Lease.” 1 CR 460, ¶ 31.

Appellants breached the First Floor Lease when they locked Appellee out of the First Floor

leasehold on March 30, 2017. 1 CR 457, ¶ 35. Under section 93.002(c) of the Texas Property Code,

a commercial landlord is prohibited from intentionally preventing a tenant from entering a leased

premises. 1 CR 460, ¶ 32. Further, Appellants failed to place written notice on the tenant’s door or

give them contact information to retrieve a new key upon curing the claimed default for delinquent

rent payments. 1 CR 457, ¶ 36. Therefore, Appellants violated section 93.002(f) of the Texas

Property Code which requires a commercial landlord to give tenant written notice of the default

and contact information to retrieve a new key upon curing the delinquent rent payment. TEX.

PROP. CODE § 93.002(f); 1 CR 457, ¶ 33; 1 CR 460, ¶ 33; 1 CR 461, ¶ 41.

After the unlawful lockout and not posting any notice for how to cure the claimed default,

Appellee had to resort to self-help to regain possession of the First Floor leasehold. 1 CR 457, ¶

39. After applying for and receiving a Writ of Reentry from the Justice Court (1 CR 457, ¶ 38),

Appellants forcibly entered the First Floor leasehold, forced Appellee and his staff of healthcare

professionals to vacate the leasehold and chained the door shut with a large metal chain and

padlock. 1 CR 457, ¶ 35-42. The next day, Appellants removed the marquee sign for Appellee’s

BRIEF OF APPELLEE Page 26 of 42 business. 1 CR 457, ¶ 43. As a result, Appellee suffered damages by being unable to conduct his

business and causing lost business income and wages. 1 CR 457, ¶ 31-32; 1 CR 458, ¶ 50-53; 1

CR 460, ¶ 20-21; 1 CR 461, ¶ 35-36.

Appellants intentionally prevented Appellee from entering the First Floor and Second Floor

Leases by changing the locks and throwing away Appellee’s personal property, thus constructively

evicted them, and forced Appellee to abandon the Property. 1 CR 459, ¶ 9-16. The trial court found

the Appellants’ measures substantially interfered with Appellee’s use and enjoyment of the

leaseholds. 1 CR 459, ¶ 11. The trial court further found that Appellants intended to permanently

deprive Appellee from the First and Second Floor Leases. 1 CR 459, ¶ 12. As a result, Appellee

lost personal property, lost business opportunities, lost wages and income, as well as lost good

rapport with his patients. 1 CR 454, ¶ 7; 1 CR 456, ¶ 19.

Therefore, Appellants failed to sufficiently and specifically overcome a factual and legal

sufficiency review. Appellants failed to meet the high burden of the great weight and burden of

preponderance of the evidence. It is clear from the record that Appellants breached the Second

Floor Leases when they prematurely locked Appellee out of the Second Floor leaseholds when

Appellee had not abandoned the leaseholds, was not delinquent on rent payments, nor in default

as to any other respect of the Second Floor Leases. Additionally, Appellants did not post notice of

the alleged default, did not provide time to cure the default, and failed to provide a way to obtain

a new key for the leaseholds. 1 CR 455, ¶ 11-12; 1 CR 459, ¶ 18. It is also clear from the record

that Appellants breached the First Floor Lease when they changed the locks even though Appellee

was not in default for any provision of the First Floor Lease, and chained the doors shut and took

down the marquee sign after Appellee had to seek out a writ of reentry and a temporary restraining

order. 1 CR 460, ¶ 28; 1 CR 457, ¶ 37-43. Thus, it is a rational and reasonable conclusion as from

BRIEF OF APPELLEE Page 27 of 42 the weight of the evidence and Findings of Fact, Appellants breached the Second Floor Leases.

Appellants failed to meet the high burden to show that the trial court was wrong to conclude in

favor of Appellee.

ISSUE NUMBER 5: The Trial Court Properly Held that Appellants Prior Materially Breached and Failed to Mitigate Damages

Appellants committed a prior material breach, thus discharging Appellee of his duties

under the contract. “It is a fundamental principle of contract law that when one party to a contract

commits a material breach of that contract, the other party is discharged or excused from further

performance.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196, 198 (Tex. 2004)

(per curiam). To determine if a breach is material, the court weighs the following five

circumstances: the extent to which the injured party will be deprived of the benefit which he

reasonably expected; the extent to which the injured party can be adequately compensated for the

part of that benefit of which he will be deprived; the extent to which the party failing to perform

or to offer to perform will suffer forfeiture; the likelihood that the party failing to perform or to

offer to perform will cure his failure, taking account of the circumstances including any reasonable

assurances; and the extent to which the behavior of the party failing to perform comports with

standards of good faith and fair dealing. See id. at 199.

Here, Appellants took unlawful remedial measures to lock Appellee out of the Second

Floor leaseholds without Appellee abandoning the Second Floor leaseholds or otherwise being in

default on the Second Floor Leases. 1 CR 459, ¶ 2-3, 6. Appellants were not justified to act against

Appellee because Appellee never defaulted on any of the Second Floor or First Floor Leases. 1

CR 459, ¶ 1-3, 1 CR 460, ¶ 28-30. By breaching the Second Floor and First Floor Leases before

the Leases were set to terminate, Appellants deprived Appellee of the use and enjoyment of the

leaseholds, deprived Appellee of business opportunities, wages, income, and personal property. 1

BRIEF OF APPELLEE Page 28 of 42 CR 459, ¶ 10-12, 1CR 460, ¶ 23-25, 1 CR 461, ¶ 43. Further, Appellants forcibly removed

Appellee from the First Floor leasehold by chaining the door shut and removing the marquee sign

outside the leasehold. 1 CR 457, ¶ 42-43. Appellants only had the right to take remedial measures

if Appellee defaulted on any of the Leases. Therefore, the trial court agreed and found that

Appellants breached the First Floor and Second Floor Leases, thus Appellee was in the right to

abandon the leaseholds and not pay for the remainder of monthly rents.

Furthermore, when a tenant abandons a commercial property, a landlord has a duty to make

reasonable efforts to mitigate damages. See Austin Hill Country Realty, Inc. v. Palisades Plaza,

Inc., 948 S.W.2d 293, 299 (Tex. 1997). A landlord's failure to use reasonable efforts to mitigate

damages bars the landlord's recovery against the tenant in that the damages reasonably could have

been avoided. See id. at 299. Here, Appellee suffered damages as a result of Appellants’ breach. 1

CR 457, ¶ 32, 1 CR 458, ¶ 51. Appellants never presented any evidence that they attempted to

mitigate damages. As such, the trial court properly found in favor of Appellee as to Appellants’

affirmative defense of failure to mitigate damages. See 1 CR 2319. Therefore, because of

Appellants’ failure to reasonably attempt to mitigate damages, Appellants cannot recover against

Appellee in that regard.

ISSUE NUMBER 6: The Trial Court Properly Held that Appellee was Entitled to Reasonable and Necessary Attorney’s Fees Because He was the Prevailing Party

Appellee is entitled to recover attorney’s fees as the prevailing party because the trial

court’s Final Judgment found in favor of Appellee and granted Appellee equitable relief. First, the

trial court properly concluded Appellee is entitled to recovery of attorney’s fees because Appellee

is authorized under Texas law and by the contract terms agreed to in the Second Floor Leases.

Generally, a litigants’ attorney fees are recoverable if authorized by a statute or by a contract

between the parties. Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650

BRIEF OF APPELLEE Page 29 of 42 (Tex. 2009); Farrar v. Hobby, 113 S.Ct. 566, 506 U.S. 103 (1992). Additionally, the Texas Civil

Practices and Remedies Code § 38.001 permits recovery of attorney’s fees when a party prevails

over a breach of contract claim. Tex. Civ. Prac. & Rem. § 38.001. More specifically, Texas law

holds that “trial court[s] ha[ve] no discretion to deny” an award of reasonable attorney’s fees if a

plaintiff prevails on a breach-of-contract claim and recovers damages. Tuttle v. Builes, 2019 WL

1301881, No. 11-17-00096-CV, at *9 (Tex. App.—Eastland, 2019) (citing Smith v. Patrick W.Y.

Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009)).

In this case, fee recovery is authorized by both under Texas Civil Practices and Remedies

Code and by the express contract between Appellants and Appellee. First, Section 29.1 of the

Second Floor Leases authorizes attorney’s fees to be recovered. Specifically, it states “the

defaulting party shall pay, immediately upon demand, the other party’s reasonable attorney’s fees,

collection costs, costs of litigation.” 1 CR 128, ¶ 29-29.1. Thus, Appellee is authorized to recover

attorney’s fees by the parties’ express agreement as found in the Second Floor Leases.

Secondly, Appellee is entitled to attorney’s fees because the Final Judgment found

Appellee was the prevailing party on its breach of contract claims. For a party to prevail on a claim,

the Supreme Court of the United States holds a plaintiff must gain actual relief on the merits of his

claim.” Intercontinental Grp. P’ship, 295 S.W.3d 650 (Tex. 2009) (citing Farrar v. Hobby, 113 S.

Ct. 566, 506 U.S. 103 (1992)). The gained relief must “materially alter the legal relationship

between the parties” in a way which “modif[ies] the defendant’s behavior in a way that directly

benefits the plaintiff.” Intercontinental Grp. P’ship, 295 S.W.3d 650 (Tex. 2009) (citing Farrar v.

Hobby, 113 S. Ct. 566, 506 U.S. 103 (1992)). Essentially, the Supreme Court states the plaintiff

must obtain affirmative judicial relief to be a prevailing party. Intercontinental Grp., 295 S.W.3d

at 655-56 n.17.

BRIEF OF APPELLEE Page 30 of 42 In this case, Appellee not only was held as the prevailing party, but also gained affirmative

judicial relief. First, in their Final Judgment the trial court stated Appellee was a prevailing party

because,

The Court finds in favor of Plaintiff and against Defendants as to Plaintiff’s claims for Breach of Contract, Interference with Existing Contract, Interference with Prospective Contracts, Trespass to Real Property, and Conversion; The Court finds in favor of Plaintiff and against Defendants as to Defendant’s affirmative defense of failure to mitigate damages; The Court finds in favor of Plaintiff and against Defendants as to Defendants’ claim for Breach of Contract; The Court finds in favor of Plaintiff and against Defendants as to Plaintiff’s affirmative defense of prior material breach; The Court finds that Plaintiff, having selected to recover on his claim for breach of contract claim against Defendant Christine, is entitled to damages, reasonable and necessary attorneys’ fees, and costs of court;

Final J., 1 CR 2319-21. Thus, as the prevailing party, Appellee is entitled to recover attorney’s

fees. In addition to being the prevailing party, Appellee received affirmative judicial relief. Prior

to trial, the trial court granted Appellee’s Temporary Restraining Order against Appellants. This

injunctive relief materially altered the relationship between the parties, because it ordered the

Appellants to be temporarily restrained from:

interfering with Plaintiff’s business by directly or indirectly wrongfully locking out Plaintiff, himself, and his officers, vendors, providers, agents, contractors, doctors, and employees, including act of changing the locks of the leasehold; directly or indirectly falsely imprisoning Plaintiff’s patients or doctors, employees; interfering with Plaintiff’s business by directly or indirectly wrongfully preventing access to Plaintiff’s Lease by blocking the parking lot interfering with Plaintiff and the Plaintiff’s business by, within five (5) days of the Temporary Restraining Order, returning all personal property, business personal property, cash, employee information, employee lists, customer lists, private information regarding doctors, employees, the business, and customer information that have been removed from the business including, but not limited to, the marquee sign removed from the premises; interfering with Plaintiff’s business by, directly or indirectly, wrongfully taking possession of Plaintiff’s personal property or business property; directly or indirectly making untruthful or disparaging statements against Plaintiff; committing any act which would make it impossible to carry on the ordinary course of business of Plaintiff;

BRIEF OF APPELLEE Page 31 of 42 TRO, 1 CR 8, ¶ 8-10. Therefore, in addition to being named as the prevailing party, the trial court

granted affirmative judicial relief from the Temporary Restraining Order which the Appellee

directly benefitted from—thereby entitling Appellee to attorney’s fees.

In conclusion, Appellee is the prevailing party entitled to recover reasonable attorney’s

fees both under the Texas Civil Practice and Remedies Code and as the prevailing party. Therefore,

the trial court properly granted Appellee attorney’s fees.

A. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed On The Indistinguishable Counterclaim.

Alternatively, Appellee had no obligation to segregate attorney’s fees because the claim

and counterclaim were recoverable and indistinguishable. Generally, attorneys are required to

segregate fees for legal services between recoverable and nonrecoverable claims. See Navigant

Consulting, Inc. v. Wilkinson. 208 F.3d 277, 298 (5th Cir. 2007). The question to the extent whether

claims can or cannot be segregated is a mixed question of law and fact for factfinder. See Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312-13 (Tex. 2006). However, Appellee qualifies

for the exception to the general rule.

The exception to recovering for defense of a claim applies when “the matters encompassed

by the claim and counterclaim are indistinguishable.” De La Rosa v. Kaples, 812 S.W.2d 432, 434

(Tex. App.—San Antonio 1991, writ denied); Tony Gullo Motos I, L.P. v. Chapa, 212 S.W.3d, 50

Tex. Sup. Ct. J. 278 (Tex. 2006).

A claim and counterclaim are indistinguishable where they arose from the same

transactions, and where the same facts required to prosecute the claim are required to defend

against the counterclaim. Veale v. Rose, 657 S.W.2d 834, 841 (Tex. App.—Corpus Christi-

Edinburg 1991, writ denied); (citing First Wichita National Bank v. Wood, 632 S.W.2d 210 (Tex.

App.—Fort Worth 1982, no writ)); Wilkins v. Bain, 615 W.S.2d 314 (Tex. Civ. App.—Dallas

BRIEF OF APPELLEE Page 32 of 42 1981, no writ); Ortiz v. O.J. Beck and Sons, Inc., 611 S.W.2d 860 (Tex. App.—Corpus Christi

1980, no writ.); See also Williamson v. Tucker, 615 S.W.2d 881 (Tex. App.—Dallas 1981, writ

ref’d n.r.e.)). In the event a plaintiff’s breach of contract claim and a defendant’s counterclaim

arises from the same transaction and the same facts required to prosecute the claim are required to

defend against the counterclaim,” attorney’s fees are then appropriate for the defendant’s

counterclaim. See V.T.C.A., Civil Practice & Remedies Code § 38.001; Brockie v. Webb, 244

S.W.3d 905 (Tex. App.—Dallas, 2008); See Hooker v. Constellation Homebuilder Sys., Inc., 2008

WL 4057909, No. CIV. A. V-06-77, at *5 (S.D. Tex. Aug. 26, 2008).

For example, courts have found claims and counterclaims to be indistinguishable when

they concern disputes over the same contract. For example, in Veale v. Rose the Corpus Christi

Court of Appeals held a claim and counterclaim were indistinguishable when both claims alleged

breaches of the same contract. 657 S.W.2d 834 (Tex. App.—Corpus Christi-Edinburg, 1983). The

Veale Court reasoned that the two claims were so interrelated, that the counsel spent “no more

time in preparation to defend against the counterclaim than was necessary to meet appellant’s

defenses to the primary lawsuit.” Id. at 841. Additionally, in De La Rosa v. Kaples, the San Antonio

Court of Appeals also found a claim and counterclaim to be indistinguishable when the matters

encompassed the same contract and transaction. De La Rosa, 812 S.W.2d at 434.

Similarly, in our case, the claim and counterclaim are indistinguishable because they are

both breach of contract claims for the same contract—the Commercial Lease for the First Floor

and the Commercial Leases for the Second Floor. Appellee and Appellants sued one another on

respective breach of contract claims. Appellee’s claim and Appellants counterclaim arise out of

the same facts—breach of the First Floor and Second Floor Leases. Pl.’s First Am. Pet., 1 CR 343,

¶ 44-47. Appellee was successful on his breach of contract claim by receiving affirmative judicial

BRIEF OF APPELLEE Page 33 of 42 relief, thus Appellee was the prevailing party. Additionally, because claim and counter claim were

indistinguishable, Appellee was not required to segregate fees prosecuting their own claim and

defending the counterclaim. Appellants then counterclaimed against Appellee for their breach of

contract claim, arising from the same facts. Def.’s Third Am. Answer and Countercl., 1 CR 381,

¶ 10-14. Specifically, the facts for Appellee’s claim, and Appellee’s defense of the counterclaim

both relied on Appellants’ breach of the First Floor and Second Floor Leases when it locked

Appellee out of the leaseholds and failed to provide written notice and opportunity to cure. 1 CR

456, ¶ 21-23. Thus, the claim and counterclaim are indistinguishable because they both require the

facts. The trial court properly held that Appellee was entitled to attorney’s fees because not only

was it the prevailing party but the matters encompassed by the claim and counterclaim are

indistinguishable and thereby Appellee was not required to segregate fees.

B. Attorneys’ Fees Granted Were Reasonable and Not Excessive

The sum of seventy-five thousand and thirty-three dollars ($75,033.00) is reasonable and

necessary attorney’s fees for litigating the present case through a bench trial. The Texas Supreme

Court has confirmed the lodestar method for the calculation of necessary and reasonable attorney’s

fees. See Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428, at *20 (Tex.

Apr. 26, 2019). The Court held that “the fact finder’s starting point for calculating attorney’s fee

award is determining the reasonable hours worked multiplied by a reasonable hourly rate,” and the

fee claimant bears the burden of providing sufficient evidence. Id. at *20 (Tex. Apr. 26, 2019).

Sufficient evidence is met by evidence of (1) particular services performed, (2) who performed

those services, (3) approximately when the services were performed, (4) the reasonable amount of

time required to perform the services, and (5) the reasonable hourly rate for each person performing

such services. See id. at *20 (citing El Apple, 370 S.W.3d at 762-63). Further, the Court held a

BRIEF OF APPELLEE Page 34 of 42 “reasonable” attorney’s fee is “one that is not excessive or extreme, but rather moderate or fair.”

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).

In general, clear and uncontroverted evidence of attorney’s fees is taken as true as a matter

of law. Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.—Austin, 2001) (citing Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990)). Further, uncontroverted

evidence of attorney’s fees is especially taken as true as a matter of law when the opposing party

has not rebutted the evidence. Id. Moreover, courts may “draw upon its common knowledge and

experience” to determine the amount that is reasonable and necessary. Moreno v. Reliable

Insulation, Inc., 217 S.W.3d 769, 770-71 (Tex. App.—Dallas, 2007).

Here, Appellee provided clear and uncontroverted evidence of its attorney’s fees. As shown

in the Affidavit of Tailim Song, Appellee provided sufficient evidence of the services performed,

such as Tailim Song’s appearance at motion hearings, drafting and reviewing discovery and

documents, and appearing and proceeding through trial, and the dates of when the services were

performed. See 2 CR Supp. 2349-2355. In addition, the affidavit provided sufficient evidence of

who performed the services such as by Tailim Song, and his Associates Jordan Whiddon, Joseph

Skaist, and Haben Tewelde and their reasonable hourly rate that is customary for a lawyer with

their level of experience. See Aff. of Tailim Song, 2 C.R. Supp. 2323-2325, ¶ 1-7. Accordingly,

Appellee has met their burden of providing sufficient evidence for the lodestar method, which is

presumptively reasonable. Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL

1873428, at *20 (Tex. Apr. 26, 2019). Thus, Appellee has provided clear and uncontroverted

evidence its attorney’s fees of seventy-five thousand and thirty-three dollars ($75,033.00) are

reasonable and not excessive for litigating the present case.

ISSUE NUMBER 7: The Trial Court Properly Held That Appellants Tortiously Interfered with the Contract, Tortiously Interfered with prospective Contracts, That Appellants

BRIEF OF APPELLEE Page 35 of 42 Trespassed on Real Property, and Appellants Committed Conversion

Moreover, the trial court held that Appellants are liable to Appellee for tortious interference

with the existing contracts as well as prospective contracts, trespass on real property, and

conversion. Appellants tortiously interfered with the existing contracts for the First and Second

Floor Lease when they unlawfully locked out Appellee from his leaseholds, proximately causing

Appellee to turn away potential patients and lose business opportunities. To prove that a defendant

tortiously interfered with the existing contract, the plaintiff must prove that “(1)

an existing contract subject to interference, (2) a willful and intentional act of interference with

the contract, (3) that proximately caused the plaintiff's injury, and (4) caused actual damages or

loss.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

Here, Appellants locked Appellee out of the leasehold without notice or opportunity to

remedy the situation. 1 CR 455, ¶ 12; 1 CR 457, ¶ 36. As a direct result, Appellee lost business

profits, wages, and personal property. 1 CR 458, ¶ 51; 1 CR 460, ¶ 32. Further, Appellants kept all

security deposits Appellee paid for the Second Floor and First Floor leaseholds worth $2,552.00.

1 CR 457, ¶ 31; 1 CR 459, ¶ 13-14; 1 CR 460, ¶ 23-27. Appellee’s losses only happened as a result

of Appellants’ unlawful actions. Otherwise, Appellee would still be operating its business in the

Second Floor and First Floor leaseholds and would be running a profitable and sustainable

business. 1 CR 460, ¶ 23-27.

“To prevail on a claim for tortious interference with prospective business relations, the

plaintiff must establish: (1) there was a reasonable probability that the plaintiff would have entered

into a business relationship with a third party; (2) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; (3) the defendant's conduct was independently tortious

BRIEF OF APPELLEE Page 36 of 42 or unlawful; (4) the interference proximately caused the plaintiff's injury; and (5) the plaintiff

suffered actual damage or loss as a result.” McConnell v. Coventry Health Care Nat'l Network,

No. 05-13-01365-CV, 2015 WL 4572431, at *6 (Tex. App. July 30, 2015).

Appellants consciously interfered with Appellee’s business operations on April 12, 2017,

Appellant Francis Anthony Desio, retaliated against Appellee when he blocked the entrance to the

First Floor leasehold, falsely imprisoned, yelled at and threatened Appellee’s patients and

professional staff. 1 CR 20, ¶ 17. Appellant Francis Anthony Desio further forced Appellee, his

professional staff, and patients to leave the First Floor leasehold, causing them to fear for their

safety, thus leaving the leasehold. 1 CR 20, ¶ 17; 1 CR 21, ¶ 18. As a consequence of Appellants’

tortious and unlawful actions, Appellee’s staff have not been able to work or conduct their

business, so they have left to work elsewhere. 1 CR 23, ¶ 31. Additionally, potential patients went

elsewhere for treatment. See id. Appellee took the time and effort to train the medical professionals

he hired for his business and has developed a professional working relationship with them. 1 CR

23, ¶ 29.

The trial court found that Appellants constructively evicted Appellee from the Second

Floor leaseholds. Appellants constructively evicted Appellee when they intentionally changed the

locks on the door, and threw away Appellee’s personal property, depriving Appellee of the use

and enjoyment of the Leasehold. 1 CR 459, ¶ 9 For a landlord to constructively evict a tenant, they

must: (1) An intention on the part of the landlord that the tenant shall no longer enjoy the premises,

which intention may be inferred from the circumstances; (2) A material act by the landlord or those

action for him or with his permission that substantially interferes with the use and enjoyment of

the premises for the purpose for which they are let; (3) The act must permanently deprive the tenant

of the use and enjoyment of the premises; (4) The tenant must abandon the premises within a

BRIEF OF APPELLEE Page 37 of 42 reasonable time after the commission of the act. Metroplex Glass Cent., Inc. v. Vantage Props.,

Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 1983, writ refused n.r.e.).

. Appellants intentionally prevented Appellee from entering the leaseholds, Appellants had

the intent to permanently exclude Appellee from the Leaseholds, and Appellants intended the

Appellee no longer enjoy the Leaseholds. 1 CR 456, ¶ 23-28; 1 CR 459, ¶ 10-12; 1 CR 455 ¶ 10,

1 CR 456 ¶ 23, 24. Further, after the lockout, Appellants never gave Appellee new keys and was

never allowed back into the space. 1 CR 456, ¶ 20.

Appellant’s lockout substantially interfered and permanently deprived Appellee the use

and enjoyment of the Second Floor Lease because Appellee never regained access into the

leasehold nor provided a place to pick up a key. 1 CR 456, ¶ 18; 1 CR 456, ¶ 26; 1 CR 456, ¶ 29.

Therefore, Appellee lost personal property and could not operate his business efficiently and

effectively without the personal office equipment. See 1 CR 456, ¶ 18. Moreover, the trial court

found that Appellants intended to permanently deprive Appellee of the space because Appellants

had no reason to act the way they did other than for the desire to prevent Appellee from using the

Leaseholds. 1 CR 459, ¶ 10-12. As a result, the trial court properly concluded that Appellee’s

forced abandonment of the Second Floor Leasehold was a reasonable time after the lockout. 1 CR

456, ¶ 27; 1 CR 460, ¶ 27.

Appellants thus trespassed onto Appellee’s real property when they changed the locks on

the doors and purposely avoided giving Appellee notice and opportunity to receive a new key. 1

CR 455, ¶ 9; 1 CR 456, ¶ 20-21. Trespass on real property “is an unauthorized entry upon the land

of another and may occur when one enters—or causes something to enter—another’s

property.” Lakeside Vill. Homeowners Ass'n, Inc. v. Belanger, 545 S.W.3d 15, 36 (Tex. App.

2017), review denied (Sept. 8, 2017) citing to Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011).

BRIEF OF APPELLEE Page 38 of 42 “To recover damages for trespass to real property, a plaintiff must prove that (1) the

plaintiff owns or has a lawful right to possess real property, (2) the defendant entered the plaintiff’s

land and the entry was physical, intentional, and voluntary, and (3) defendant’s trespass caused

injury to the plaintiff.” Lakeside Vill. Homeowners Ass’n, 545 S.W. at 36, citing to Wilen v.

Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied).

Here, Appellee and Appellants had valid contracts for the Second Floor and First Floor

leaseholds for office space and a healthcare business, respectively. 1 CR 459, ¶ 1. Thus, Appellee

had the right to access and possess the leaseholds. Moreover, Appellants could not intentionally

prohibit Appellee from entering the leaseholds. See TEX. PROP. CODE § 93.002(c), 1 CR 459, ¶

17.

However, Appellants entered Appellee’s leaseholds without authorization, took Appellee’s

possessions, and locked Appellee out. 1 CR 455, ¶ 7-9; 1 CR 456, ¶ 19-20. Further, Appellants

knew that by preventing Appellee from entering the Second Floor and failing to provide a reason

for their actions without any way to remedy the situation (1 CR 456-457, ¶ 29-31; 1 CR 458, ¶ 48-

49), Appellants caused unnecessary disruption and permanently prevented Appellee from using

and enjoying the leaseholds. 1 CR 459, ¶ 8-12; 1 CR 460, ¶ 23-25 This trespass caused Appellee’s

lost business revenue, wages, and use and enjoyment of the leaseholds. Id.; 1 CR 460, ¶ 20; 1 CR

461, ¶ 35. Thus, Appellants are responsible to Appellee for trespassing on their property.

Moreover, the trial court properly held that Appellants committed conversion when

Appellants wrongfully retained Appellee’s personal property. To prevail on a claim of conversion,

a plaintiff must prove (1) he owned or had possession of the property; (2) the defendant unlawfully

and without authorization assumed and exercised control over the property to the exclusion of, or

inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the

BRIEF OF APPELLEE Page 39 of 42 property; and (4) the defendant refused to return the property. See Scott Pelley P.C. v. Wynne, No.

05–15–01560–CV, 2017 WL 3699823, at *11 (Tex. App.—Dallas Aug. 28, 2017, pet. denied).

Here, Appellants wrongfully locked Appellee out of his leasehold despite knowing

Appellee still had personal property in the leasehold at the time of lockout. 2 RR p. 16. Remaining

items included, but are not limited to, three refrigerators, a copy machine, office furniture, and

office supplies for the purposes of storage. 1 CR 455, ¶ 7. Following the lockout, Appellants then

called the scrapyard to retrieve and dispose Appellee’s personal property despite Appellee orally

telling Appellants he would come back to retrieve the property. 2 RR p. 29-31. Thus, the trial court

properly found in favor of Appellee that Appellants committed conversion. See 1 CR 446-48.

CONCLUSION

The trial court’s Final Judgment should be upheld because the trial court properly found

that Appellee did not breach the Second Floor or the First Floor Leases, that Appellants acted

prematurely in violation of the First and Second Floor Leases as well as the Property Code, and

that as a result of Appellants’ actions, Appellee lost personal property, wages, business earnings,

patients, as well as reputation in the community. Thus, as the prevailing party, it is proper that

Appellee should be awarded attorneys’ fees.

PRAYER

For these reasons stated above, Appellee Mike Del Bosque D/B/A Injury and Rehab

Center in Grand Prairie respectfully prays that the Court sustain its allegations of error and affirm

the December 19, 2018 Final Judgment.

Respectfully submitted,

/s/ Tailim Song

Tailim Song State Bar No. 00792845

BRIEF OF APPELLEE Page 40 of 42 tsong@tailimsong.com Tel: (214) 528-8400 Fax: (214) 528-8402 8111 Lyndon B. Johnson Fwy Suite 480 Dallas, Texas 75251 ATTORNEY FOR APPELLEE

RULE 52.3(J) CERTIFICATION

I have reviewed the Brief of Appellee and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.

/s/ Tailim Song ______________________________ Tailim Song

CERTIFICATE OF COMPLIANCE

I hereby certify that I prepared the foregoing brief using Microsoft Word 2019 software, a 14-point Times New Roman font for all text and a 12-point Times New Roman font for any footnotes. According to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 12,329 words, including footnotes.

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief was delivered to the following party in accordance with the Texas Rules of Appellate Procedure on this 18th day of June 2019:

Bush Rudnicki Shelton, P.C. Grant A. Bannen State Bar No. 00793300 200 N. Mesquite St., Suite 200 Arlington, Texas 76011 Tel: (817) 274-5992 Fax: (817) 261-1671 ATTORNEYS FOR APPELLANT

BRIEF OF APPELLEE Page 41 of 42 /s/ Tailim Song ______________________________ Tailim Song

BRIEF OF APPELLEE Page 42 of 42