Daftary v. Prestonwood Market Square, Ltd.

399 S.W.3d 708, 2013 WL 1737409, 2013 Tex. App. LEXIS 5141
CourtCourt of Appeals of Texas
DecidedApril 23, 2013
DocketNo. 05-11-00673-CV
StatusPublished
Cited by27 cases

This text of 399 S.W.3d 708 (Daftary v. Prestonwood Market Square, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daftary v. Prestonwood Market Square, Ltd., 399 S.W.3d 708, 2013 WL 1737409, 2013 Tex. App. LEXIS 5141 (Tex. Ct. App. 2013).

Opinion

OPINION ON REHEARING

Opinion by

Justice MOSELEY.

We overrule appellees motion for rehearing. On our own motion, we withdraw our opinion of February 1, 2013, and vacate the judgment of February 1, 2013. The following is now the opinion of the Court.

Gautam C. Daftary and Shweta G. Daf-tary (the Daftarys) appeal the trial court’s entry of an adverse judgment in an action for forcible entry and detainer.1 The trial court awarded possession of the property, damages, and attorney’s fees to Preston-wood Market Square, Ltd. and Henry S. Miller Brokerage, LLC.2 In five issues on appeal, the Daftarys argue the trial court lacked jurisdiction to render judgment, the evidence was legally insufficient to support the damages award, the trial'court erred by awarding attorney’s fees to HSM, the trial court abused its discretion by severing the forcible-detainer action from the other claims in the case, and there is no final judgment in the case.

The background and facts of the case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R.App. P. 47.2(a), 47.4. Because we lack jurisdiction over the Daftarys’ complaints about the trial court’s order severing the forcible-detainer partial judgment, we dismiss those complaints on appeal. Because HSM’s cause of action for possession of the premises was mooted before trial, we vacate the trial court’s judgment awarding possession of the premises to HSM and dismiss that claim as moot. Additionally, because there is no evidence of HSM’s damages, we reverse the trial court’s judgment awarding HSM damages and render a take-nothing judgment on HSM’s requests for damages. We remand HSM’s request for attorney’s fees to the trial court to determine the amount, if any, HSM is entitled to recover.

The Daftarys leased commercial real estate from HSM for $12.00 per square foot. The lease expired on June 30, 2008. The Daftarys sought to exercise a three-year renewal option. Although the Daftarys and HSM did not sign a new lease or an extension, the Daftarys continued paying rent pursuant to the terms of the expired lease from July 2008 until September 2009.

In October 2009, HSM informed the Daftarys that if they continued to occupy the space, they could either execute a new, long-term lease or pay holdover rent. The Daftarys believed they had executed the three-year option on the prior lease and a new, long-term lease was unnecessary. The following month, HSM notified the Daftarys it was terminating their month-to-month tenancy and that they [711]*711must vacate the premises within 30 days, or no later than December 21, 2009. When the Daftarys failed to vacate the premises, HSM filed a forcible-detainer action in the justice court. In February 2010, the justice court held a hearing on HSM’s forcible-detainer action and awarded possession of the premises to HSM. The Daftarys appealed the ruling to the County Court at Law; the Daftarys continued to occupy the premises during the pendency of the appeal.

The County Court at Law conducted a trial de novo on HSM’s forcible-detainer action on January 25, 2011. On the day of trial, before the proceedings began, the Daftarys presented the trial court with the keys to the premises and tendered possession. The Daftarys then argued the forcible-detainer case was moot because the case no longer presented an issue about which party was entitled to possession. The trial court proceeded to conduct a bench trial; at the end of the trial, the court concluded HSM was entitled to possession, rent that would have been due from December 21, 2010, until January 25, 2011, and attorney’s fees. The signed judgment reflects the trial court’s conclusions.

In their first issue, the Daftarys argue the trial court lacked jurisdiction to consider the forcible-detainer action because the case became moot when they tendered possession of the premises on the morning of trial. Appellate courts are prohibited from deciding moot controversies. See Sepulveda v. Medrano, 328 S.W.3d 620, 625 (Tex.App.-Dallas 2010, no pet.). A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001). If a case becomes moot, the appellate court must vacate any judgment or order the trial court to dismiss the case. City of Dallas v. Woodfield, 305 S.W.3d 412, 416 (Tex.App.-Dallas 2010, no pet.). When, as here, possession changes hands and there is no basis for a claim of right to possession, the issue of possession becomes moot. See Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex.2006).

However, the entire case only becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005). A dispute over attorney’s fees is a live controversy and may prevent an appeal from being moot. See id. Likewise, a dispute regarding damages is a live controversy and may prevent a case from becoming moot. See Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d 826, 830 (Tex.App.-Austin 2003, pet. denied).

Before hearing the Daftarys’ appeal de novo from the justice court, the trial court determined it would consider the forcible-detainer case as well as “any remedy available under TRCP 752.” Pursuant to rule 752, HSM could recover its “damages, if any, suffered for ... defending possession of the premises during the pendency of the appeal.” Tex.R. Civ. P. 752. Damages include “loss of rentals during the pen-dency of the appeal and reasonable attorney fees in the justice and county courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the county court shall be entitled to recover damages against the adverse party.” Tex.R. Civ. P. 752.

While the issue of possession became moot when the Daftarys vacated the property, the entire case was not moot because HSM’s claims for damages and attorney’s fees continued to present live controversies. Because live claims were [712]*712presented to the trial court, it did not err by concluding the case was not moot and it had jurisdiction. We overrule the Daftar-ys’ first issue.

The Daftarys also argue the evidence was legally insufficient to support the damages awarded. The proper measure of damages in a forcible-detainer appeal is the reasonable rental value of the property during the pendency of the appeal. Hart v. Keller Props., 567 S.W.2d 888, 889 (Tex.Civ.App.-Dallas 1978, no writ); Koelzer v. Pizzirani, 718 S.W.2d 420, 422 (Tex.App.-Fort Worth 1986, no writ).

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399 S.W.3d 708, 2013 WL 1737409, 2013 Tex. App. LEXIS 5141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daftary-v-prestonwood-market-square-ltd-texapp-2013.