AFFIRM in Part, REVERSE in Part, and REMAND, and Opinion Filed June 27, 2024.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00135-CV
DIANE PIWKO, Appellant V. STACEY ACEVEDO, Appellee
On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-05314-2019
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Kennedy In this landlord–tenant dispute, Stacy Acevedo (“Tenant”) obtained a
judgment against Diane Piwko (“Landlord”) on her breach of contract claim and
request for injunctive relief. On appeal, Landlord challenges the sufficiency of the
evidence to support various findings of the trial court and the amount of damages
awarded. While the evidence supports the trial court’s findings Landlord failed to
maintain the premises in good repair and violated Tenant’s right to quiet enjoyment
and that Tenant’s breaches of the Commercial Lease Agreement were not material,
the evidence is legally insufficient to support the amount of damages awarded. However, there is some evidence to support an award of damages. Accordingly, we
reverse the trial court’s judgment awarding Tenant damages and attorney’s fees on
her breach of contract claim and remand the case for further proceedings consistent
with this opinion.1 Because all issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On January 2, 2019, Landlord and Tenant entered into a Commercial Lease
Agreement and a Consignment Agreement (collectively, Agreements) whereby
Tenant leased the ground floor of a three-story building located at 200 McKinney
Street in Farmersville, Texas, to operate a retail yarn store known as “Yarn and
You.” The leased premises also included a balcony/mezzanine that was attached to
and accessible by the ground floor. Landlord and her husband resided in a residence
on the third floor of the building. Landlord retained certain rights of access to the
leased premises. Under the Commercial Lease Agreement, Tenant was to make
monthly rent payments equal to 6% of the prior month’s total sales of product as
defined in the Consignment Agreement. The Consignment Agreement provided for
Tenant to sell merchandise in the store that belonged to Landlord. Landlord had
1 Although we reverse and remand for a new trial on liability and damages because of the lack of sufficient evidence to support the damages awarded, we nevertheless address Landlord’s issues concerning the legal sufficiency of the evidence to support the trial court’s liability findings because legal sufficiency is a potential reverse and render issue. See Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993); GB Tubulars, Inc. v. Union Gas Operating Co., 527 S.W.3d 563, 567 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). We need not address Landlord’s issues concerning the factual sufficiency of the evidence to support the trial court’s liability findings. TEX. R. APP. P. 47.1. –2– previously operated a retail yarn store in the leased space under the name “Fiber
Circle.” The terms of the Agreements were three years.
The relationship between Landlord and Tenant deteriorated over time, and, on
September 19, 2019, Tenant filed suit seeking to enjoin certain behavior of Landlord.
She later amended her petition to assert various causes of action, including breach
of contract. Landlord filed a counterclaim seeking to enjoin certain behavior of
Tenant and Tenant’s husband, and asserting, among other things, that Tenant
breached the Commercial Lease Agreement by failing to timely provide proof of
insurance and by installing security cameras without Landlord’s consent.
On October 3, 2019, the trial court signed a temporary restraining order
precluding Landlord from taking certain action with respect to Tenant. A temporary
injunction followed on October 9. The record does not contain a ruling on
Landlord’s request for any interim injunctive relief.
The case proceeded to a bench trial on October 31, 2022. The trial court took
judicial notice of its file and admitted into evidence 73 exhibits proffered by Tenant
and 27 exhibits proffered by Landlord. Tenant’s exhibits included a summary of
requested relief, the Agreements, photographs of the premises, text messages
between the parties, videos of the premises, a review of financials in support of
damages, and attorney’s fee invoices. Landlord’s exhibits included the Agreements,
building diagrams, a settlement agreement waiving the arbitration provision in the
Consignment Agreement, various communications from Landlord’s attorney to
–3– Tenant, documents from the forcible detainer action, proof of insurance,
photographs, newsletters prepared by Tenant, accounting for rent and consignment
payments, and attorney’s fee invoices. The witnesses at trial were Tenant, Tenant’s
husband, Landlord, Landlord’s husband, a woman who was acquainted with both
Landlord and Tenant, and the parties’ attorneys.
Tenant testified that every two weeks she made two payments to Landlord:
one for rent and one for consignment. The amount of rent was tied to sales. Tenant
testified that four to five months into the lease agreement her relationship with
Landlord started to deteriorate after she noticed and complained about a substance
dripping from the ceiling into the leased space and onto product she was trying to
sell. Tenant identified the substance as cat urine and attributed it to multiple cats
living in Landlord’s upstairs residence. In support of her claim the substance was
cat urine, Tenant indicated that the odor emanating from the substance was clearly a
cat odor. She further explained the substance and its odor impacted her ability to do
business. In addition to her testimony, Tenant offered photographic evidence
establishing a substance was dripping down from the ceiling above the leased space.
With respect to the breach of her right to quiet enjoyment of the leased premises,
Tenant testified that after the temporary injunction hearing, on one occasion, she
unlocked the leased space and found Landlord in the leased space with the lights off.
She explained Landlord yelled at her in an incoherent manner placing her in fear of
being harmed. Tenant also stated Landlord threatened her and her children and that
–4– Landlord had access to firearms that were being stored in Landlord’s personal
residence. Landlord’s behavior and access to firearms caused Tenant to install
security cameras on counters and shelves in the leased space. In addition, Tenant
explained that after the temporary injunction hearing, Landlord retrieved more than
60 filthy boxes or bags of what Tenant referred to as “reject yarn” from a storage
unit and left them scattered in the leased space making it impossible to walk through
the building. One of the boxes had an enormous dirt dauber nest on it. Tenant
introduced into evidence photos of the bags and boxes. Tenant also testified that
Landlord routinely cut portions of the power to the leased space, altered the
positioning of the security cameras, and made recordings of Tenant’s private
conversations without her knowledge or permission. With respect to damages,
Tenant introduced into evidence a document titled “Review of financials while under
contract with Diana.” Tenant explained she listed all of the rent and consignment
payments she made to Landlord by month, which ranged from $300 to $1,582.72,
and projected what those payments would have been had she stayed in the leased
space for the remaining 18 months of the 3-year lease. As the owner of the building
from which Tenant was then operating Yarn and You, she testified that the fair
market rental rate for the new space was $3,500 to $5,000 per month. She used the
$3,500 figure to calculate the difference between what she would have paid had she
remained in the leased space and what she would pay for rent in a comparable space
and came up with a figure of $50,642.16. Tenant also explained that she calculated
–5– loss of potential revenue from the sale of consignment goods by estimating the total
sales for the remainder of the lease term and subtracting the cost of consigned goods
and came up with a figure of $118,738.91. Tenant admitted that she did not give
Landlord a copy of the insurance policy she secured for several months despite
repeated requests.
Tenant’s husband testified that he installed the cameras in the leased space.
He indicated the cameras were not drilled into the building; they were just set on a
shelf. He stated that there were multiple instances where Landlord would change
the cameras’ location so that they were not recording anything visible.
Joanna Robertson testified she and Landlord have been very good friends
since January of 2007. Robertson became acquainted with Tenant from sit-and-knit
Sundays at the store. She testified she frequented the store and talked about changes
she saw therein after Landlord and Tenant entered into their agreements and about
how she stopped going to the store as a result of same. She testified she believed the
liquid dripping into the leased space was condensation from the air conditioning
units that were located overhead the leased space.
Landlord’s husband testified he cleaned up the drippings, but he did not
necessarily know they were cat urine. He acknowledged that he and his wife would
trip a breaker after hours so that Tenant’s internet would not be working, and the
cameras would not be recording. Landlord’s husband testified they did so because
–6– they were concerned about their privacy as one of the cameras faced a door leading
to their residence.
Landlord testified Tenant wrongfully attempted to push her out of the business
by not including the name Fiber Circle on promotional materials, by telling people
she was out of business, and by putting a sign on the door that said “Yarn and You”
only. She claimed Tenant’s husband intimidated and tormented her, and that she did
not harass, annoy or follow Tenant in violation of the temporary injunction. That
she simply came into the store to check on things and to visit with long time friends
and customers as she had a right to do so. She complained about Tenant burning
candles and using deodorizers to cover the claimed cat urine odor urging she was
sensitive to the scents and was concerned that the yarn would absorb the scents,
thereby damaging same.
At the conclusion of trial, the trial judge announced his decision. He stated
that he was going to find for Tenant on her breach of contract claim and the request
for permanent injunction. He indicated that under Section XIV of the lease Landlord
had a duty to keep the premises in good repair, so regardless of whether the substance
leaking from the ceiling was cat urine or condensation from the air conditioner, it
was Landlord’s duty not to let that occur and to correct it when it was occurring. He
further indicated that he was awarding damages in the amount of $50,642.16 and
reasonable and necessary attorney’s fees in the amount of $17,955. On November
15, 2022, the trial judge rendered judgment in accordance with his prior ruling.
–7– Landlord requested findings of fact and conclusions of law. After this Court
ordered the trial judge to make findings of fact and conclusions of law, the trial judge
made his findings and conclusions. The following are among the trial judge’s
findings of fact and conclusions of law. He believed Tenant’s testimony especially
as it related to the permanent injunction and damages was credible. The parties
entered into a valid and enforceable contract. That contract was the Commercial
Lease Agreement, which required Landlord to maintain the leased premises in good
repair at all times and included a provision that Tenant had the right to quiet
enjoyment of the premises. Tenant performed her obligations under the Commercial
Lease Agreement and was excused from further performance by Landlord’s material
breaches of the agreement. Landlord breached the Commercial Lease Agreement
by not maintaining the premises in good repair at all times and by violating the quiet
enjoyment provision of the agreement. Landlord’s breaches amounted to a
constructive eviction of Tenant and forced her to terminate her obligations under the
lease and to find a suitable alternative commercial space to continue operating her
business. Tenant was entitled to monetary judgment for damages related to
Landlord’s breaches of the agreement in the amount of $50,642.16. As the
prevailing party, Tenant was entitled to recover attorney’s fees under Chapter 38 of
the Texas Civil Practice & Remedies Code in the amount of $17,955. The trial judge
further found Tenant’s installation of video cameras on the premises and failure to
provide proof of insurance were not material breaches of the Commercial Lease
–8– Agreement and that Landlord used these alleged breaches as a subterfuge to file a
wrongful eviction proceeding.
DISCUSSION
I. Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact have the same
weight as a jury verdict. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—
Dallas 2016, no pet.). When the appellate record contains a reporter’s record, as it
does in this case, findings of fact are not conclusive and are binding only if supported
by the evidence. Id. We review a trial court’s findings of fact under the same legal
and factual sufficiency of the evidence standards used when determining if sufficient
evidence exists to support jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297
(Tex. 1994). Unchallenged findings of fact are binding on the parties and the
reviewing court. Employers Cas. Co. v. Henager, 852 S.W.2d 655, 658 (Tex.
App.—Dallas 1993, writ denied).
When a court makes findings of fact, but inadvertently omits an essential
element of a ground of recovery or defense, the presumption of validity will supply
the omitted element by implication. We presume the trial court’s omission is
inadvertent and we are authorized by Rule 299 to presume the trial court impliedly
made any findings, supported by the record, that are necessary to support its
judgment. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 255–56 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied).
–9– When an appellant challenges the legal sufficiency of an adverse finding on
which he did not have the burden of proof at trial, he must demonstrate there is no
evidence to support the adverse finding. Fulgham v. Fisher, 349 S.W.3d 153, 157
(Tex. App.—Dallas 2011, no pet). When reviewing the record, we determine
whether any evidence supports the challenged finding. Id. If more than a scintilla
of evidence exists to support the finding, the legal sufficiency challenge fails. Id.;
see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (more than
a scintilla of evidence exists when evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions”).
When an appellant challenges the factual sufficiency of the evidence, we
consider all the evidence supporting and contradicting the finding. Sheetz, 503
S.W.3d at 502. In a bench trial, the trial court, as factfinder, is the sole judge of the
credibility of the witnesses. Fulgham, 349 S.W.3d at 157. The trial court may
choose to believe one witness over another, and we may not impose our own opinion
to the contrary. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). We set aside the finding for factual insufficiency only if the finding is so
contrary to the evidence as to be clearly wrong and manifestly unjust. Fulgham, 349
S.W.3d at 157 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).
When a party challenges a trial court’s conclusions of law, we review the
challenged conclusions de novo. See BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). The trial court’s conclusions of law are not subject to
–10– challenge for lack of factual sufficiency, but we may review the legal conclusions
drawn from the facts to determine their correctness. Id.; Dallas Cnty. v. Sweitzer,
881 S.W.2d 757, 763 (Tex. App.—Dallas 1994, writ denied); see also Walker v.
Anderson, 232 S.W.3d 899, 908 (Tex. App.—Dallas 2007, no pet.) (trial court’s
conclusions of law are independently evaluated to determine whether trial court
correctly drew legal conclusions from facts). We are not bound by the trial court’s
legal conclusions, but conclusions of law will be upheld on appeal if the judgment
can be sustained on any legal theory supported by the evidence. Sheetz, 503 S.W.3d
at 502.
II. Constructive Eviction – Wrongful Eviction
In her first issue, Landlord urges the trial court erred in finding Tenant had
been constructively evicted because no pleading supports the finding. In her fourth
issue, Landlord contends the evidence is legally insufficient to establish Tenant was
wrongfully evicted. While the trial court made factual findings Tenant had been
constructively evicted and was wrongfully evicted, it did not render judgment on this
basis. Rather, it rendered judgment in favor of Tenant on her breach of contract
claims. Therefore, without reference to the merits of Landlord’s first and fourth
issues, we overrule same as a determination thereon would have no practical effect
on the appeal. TEX. R. APP. P. 47.1.
–11– III. Breach of Contract
In her second issue, Landlord contends the evidence is legally insufficient to
support the trial court’s finding she breached the lease agreement by failing to keep
the building in good repair and by violating the quiet enjoyment provision of the
lease agreement.
To prove a claim for breach of contract, a plaintiff must establish: (1) the
existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) the plaintiff’s damages
as a result of the breach. Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 802 (Tex.
App.—Dallas 2011, no pet.).
It is undisputed that the Commercial Lease Agreement was a valid contract to
which Landlord and Tenant were parties. It is further undisputed that Section XIV
of the Commercial Lease Agreement titled “MAINTENANCE” provided:
Landlord shall be responsible for maintaining the Premises in good repair at all times during the term of this lease less consumables such as light bulbs.
And Section XXI of the Commercial Lease Agreement titled “QUIET
ENJOYMENT” provided:
During the term of the Lease Agreement, the Landlord and Tenant have the right and quiet enjoyment of the Premises. Tenant shall not create excessive noise or other conditions to render Landlord’s occupation of the second floor unenjoyable.
–12– With respect to the trial court’s finding Landlord breached the maintenance
provision of the Commercial Lease Agreement by failing to maintain the leased
premises in good repair, Tenant testified cat urine dripped from Landlord’s
residential unit above the store into the store and onto the yarn, damaging same, and
interfering with her ability to conduct business from the lease premises. Landlord
claimed the stains were from condensation dripping from the air conditioning units
into the lower floor of the building. Photographic evidence of stains from the
dripping substance were in evidence. Thus, the evidence established a substance
was dripping into the leased premises, damaging property and interfering with
Tenant’s business. This evidence constitutes more than a scintilla of evidence to
support the trial judge’s finding Landlord breached Section XIV of the Commercial
Lease Agreement. See Fulgham, 349 S.W.3d at 157.
With respect to the trial court’s finding Landlord breached the quiet
enjoyment provision of the Commercial Lease Agreement, Landlord contends,
because the elements of the implied covenant of quiet enjoyment are the same as the
elements of constructive eviction, Tenant had to prove (1) Landlord intended that
Tenant no longer use and enjoy the premises, (2) Landlord committed a material act
that substantially interferes with the tenant’s intended use and enjoyment of the
premises, (3) the material act must permanently deprive Tenant of the use and
enjoyment of the premises, and (4) the tenant must abandon the premises within a
reasonable time after the material act is committed. See Metroplex Glass Ctr., Inc.
–13– v. Vantage Props., Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 1983, writ ref’d
n.r.e.) (setting forth elements of constructive eviction). As an initial matter, we note
Tenant prevailed on her claim Landlord breached the quiet enjoyment provision of
the Commercial Lease Agreement, not on an implied covenant of quiet enjoyment.
The parties did not present any evidence the quiet enjoyment provision of the lease
was intended to replicate the implied covenant of quiet enjoyment with a contractual
provision. Thus, we conclude, to prevail on her claim Landlord breached Section
XXI of the Commercial Lease Agreement, Tenant had to prove Landlord interfered
with her right to quiet enjoyment of the premises and did not have to prove all of the
elements of constructive eviction, as required to prevail on a claim of violation of
the implied covenant of quiet enjoyment.
In that regard, Tenant provided testimony and photographic evidence
establishing Landlord had placed over 60 boxes and bags within the leased space,
blocking aisles and interfering with Tenant’s business operations. Tenant testified
about Landlord’s interference with security cameras and presented pictures and
videos of same and recordings Landlord made of Tenant’s private conversations. In
addition, Tenant testified Landlord would turn the power off to the leased space,
delaying Tenant’s opening of the store. Tenant also testified about Landlord’s
constant harassing conduct, including making disparaging remarks about Tenant
while customers were present. Videos showing Landlord’s conduct were admitted
into evidence. We conclude this evidence constitutes more than a scintilla of
–14– evidence and supports the trial judge’s finding Landlord breached Section XXI of
the Commercial Lease Agreement. See Fulgham, 349 S.W.3d at 157; see also
Fabrique, Inc. v. Corman, 796 S.W.2d 790, 792 (Tex. App.—Dallas 1990, writ
denied) (indicating harassing incidents may disturb the tenant’s peaceful possession
of premises).
Moreover, even if the contractual quiet enjoyment provision mimicked the
implied covenant of quiet enjoyment, the trial judge found Landlord constructively
evicted Tenant, and, the evidence identified above satisfies the first three elements
of constructive eviction as the evidence established Landlord’s intentional
harassment and interference was persistent and constantly deprived Tenant of the
use and enjoyment of the leased space. See, e.g., Steinberg v. Med. Equip. Rental
Servs., Inc., 505 S.W.2d 692, 697 (Tex. App.—Dallas 1974, no writ) (sufficient
evidence to support essential allegations concerning constructive eviction when it
appeared situation would not be corrected and appellee concluded he could not do
business under those circumstances). With respect to abandonment of the premises
within a reasonable time after the commission of the act, we note that Texas law
does not recognize any specific time period as constituting a reasonable time as a
matter of law. Coleman v. Rotana, Inc., 778 S.W.2d 867, 872 (Tex. App.—Dallas
1989, writ denied). Instead, whether a tenant abandons the premises within a
reasonable time is generally a question of fact. Id. Reasonableness depends on the
facts and circumstances of the particular case. See Downtown Realty, Inc. v. 509
–15– Tremont Bldg., Inc., 748 S.W.2d 309, 311 (Tex. App.—Houston [14th Dist.] 1988,
no writ). Thus, it is an issue particularly well-suited to the factfinder. See Dallas
City Limits Prop. Co., L.P. v. Austin Jockey Club, Ltd., 376 S.W.3d 792, 800 (Tex.
App.—Dallas 2012, pet. denied) (questions of reasonableness are inherently issues
for the factfinder). Here, the record establishes that part of Tenant’s tenancy was
during the COVID-19 pandemic when businesses were restricted in how they could
conduct business and that Tenant decided to purchase a property, which arguably
could impact the time to abandon the premises. Under these unique circumstances,
we cannot conclude the trial judge erred in impliedly concluding Tenant vacated
within a reasonable period of time. To the extent a showing of constructive eviction
was required to establish a breach of the quiet enjoyment provision of the
Commercial Lease Agreement, we conclude the evidence was legally sufficient to
support the trial court’s finding. See Fulgham, 349 S.W.3d at 157; see also Lazell
v. Stone, 123 S.W.3d 6, 12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
In her third issue, Landlord asserts the trial court erred in finding the breaches
of the lease agreement by Tenant were not material. Landlord contends Tenant’s
failure to timely provide proof of insurance and failure to receive Landlord’s
permission to install security cameras were material breaches of the Commercial
Paragraph XII of the Commercial Lease Agreement titled “PROPERTY
INSURANCE” provides, in part:
–16– Landlord and Tenant shall each maintain appropriate insurance for their respective interests in the Premises and property located on the Premises. Tenant’s insurance shall be an amount not less than $50,000 (fifty thousand dollars). Landlord shall be named as an additional insured party on any and all such policies. Tenant shall deliver evidence to Landlord as proof of adequate insurance in force issued by companies reasonably satisfactory to Landlord.
Paragraph VII of the Commercial Lease Agreement titled “USE OF PREMISES”
provides, in part:
Tenant makes no modifications to the fixtures, layouts, or building premises without the Landlord’s permission.
The law is well settled that a material breach by one party excuses
performance by the other party. Mustang Pipeline Co. v. Driver Pipeline Co., 134
S.W.3d 195, 196 (Tex. 2004). Thus, the question presented is whether, based on the
evidence presented, the trial court erred in finding Tenant’s alleged breaches of the
PROPERTY INSURANCE and USE OF PREMISES provisions were not material
breaches of the agreement excusing Landlord’s performance.
As an initial matter we note that the evidence established the cameras Tenant
installed where not affixed to the building. They were simply placed on shelves or
counters. Accordingly, Tenant did not violate the provision prohibiting
modifications to the fixtures, layouts, or building premises without Landlord’s
permission by installing same. See Fixture, BLACK’S LAW DICTIONARY (11th ed.
2019) (fixture defined as “[p]ersonal property that is attached to land or a building
–17– and that is regarded as an irremovable part of the real property, such as a fireplace
built into a home.”).
Whether Tenant’s failure to timely provide Landlord with proof of insurance
was a material breach is ordinarily a question of fact to be determined based on
several factors, including the following:
(a) The extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) The extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) The extend to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) 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
(e) The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
See RESTATEMENT (SECOND) OF CONTRACTS § 241; Mustang Pipeline, 134
S.W.3d at 199.
A court’s primary consideration in determining the materiality of a breach is
the extent to which the other party will be deprived of the benefit it reasonably could
have anticipated had the breach not occurred. Hernandez v. Gulf Grp. Lloyds, 875
S.W.2d 691, 693 (Tex. 1994). The less the other party is deprived of the expected
benefit, the less material the breach. Id. Landlord does not contend she was deprived
of an expected benefit; she contends that by failing to timely provide proof of
–18– insurance, Tenant failed to conform with standards of good faith and fair dealing,
only one of the relevant factors. Moreover, the evidence showed Tenant ultimately
complied with the insurance provision. Accordingly, we conclude more than a
scintilla of evidence exists to support the trial court’s finding Tenant’s failure to
provide proof of insurance was not a material breach of the Commercial Lease
Agreement. See Fulgham, 349 S.W.3d at 157. We overrule Landlord’s third issue.
IV. Damages
In her fifth issue, Landlord asserts the trial court erred in awarding Tenant
damages because she should not have prevailed on her breach of contract claim and,
in addition, the evidence of damages was speculative and factually and legally
insufficient. We have already resolved Landlord’s legal sufficiency complaints
concerning the trial court’s breach of contract findings against her and given our
disposition of this issue on the sufficiency of the evidence of damages, we need not
address the separate issue of the factual sufficiency of the evidence to support the
breach of contract findings. TEX. R. APP. P. 47.1. Thus, we limit our discussion here
to Landlord’s contention Tenant did not present competent evidence of damages.
With respect to damages in breach of contract cases, the general rule is that
“the complaining party is entitled to recover the amount necessary to put him in as
good a position as if the contract had been performed.” Smith v. Kinslow, 598
S.W.2d 910, 912 (Tex. App.—Dallas 1980, no writ) (citation omitted). Put another
way, in a breach of contract case, the normal measure of damages is just
–19– compensation for the loss or damage actually sustained, commonly referred to as
the benefit of the bargain. See SAVA Gumarska in Kemijska Industria D.D. v.
Advanced Polymer Scis., Inc., 128 S.W.3d 304, 325 n.6 (Tex. App.—Dallas 2004,
no pet.).
The damages the trial court awarded were predicated on Tenant’s evidence
concerning the difference in the market rental value for the space Tenant occupied
upon leaving the leased premises and the rent she would have paid had she remained
in the leased premises for the entire term of the Commercial Lease Agreement. In
calculating these damages, Tenant had to establish the fair market rental value of
same. See City of Austin v. Teague, 570 S.W.2d 389, 395 (Tex. 1978); Wood v.
Kennedy, 473 S.W.3d 329, 338 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(citing City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001)).
The rental value of property must be established with reasonable certainty.
Teague, 570 S.W.2d at 395. Under the “Property Owner Rule,” a property owner
may testify to the value of his property, including the rental value.2 Nat. Gas
Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012); A.G.E., Inc. v.
Buford, 105 S.W.3d 667, 677 (Tex. App.—Austin 2003, pet. denied). The rule
creates a rebuttable presumption that a landowner is personally familiar with his
2 The Property Owner Rule falls under Texas Rule of Evidence 701, which allows a lay witness to provide opinion testimony if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony or the determination of a fact issue. Justiss, 397 S.W.3d at 157 (citing TEX. R. EVID. 701). –20– property and knows its fair rental value and, thus, is qualified to express an opinion
about that value. Wood, 473 S.W.3d at 336. As such, the property owner is
permitted an exception to the general rule that a witness must first establish his
qualifications to opine on property values before he may testify. Justiss, 397 S.W.3d
at 157.
Nevertheless, to be admissible, a qualified owner’s testimony must still meet
the same requirements as any other opinion evidence. Id. at 156. An owner’s
valuation testimony must be relevant. Wood, 473 S.W.3d at 337. An owner’s
valuation testimony is not relevant if it is conclusory or speculative. Id. As with
expert testimony, property valuations may not be based solely on a property owner’s
ipse dixit. Justiss, 397 S.W.3d at 159. That is, the property owner “may not simply
echo the phrase ‘market value’ and state a number to substantiate his [valuation].”
Id. His subjective opinion, by itself, will not provide relevant evidence of value. Id.
Instead, to be relevant, the witness “must provide the factual basis on which his
opinion rests.” Id. “Evidence of price paid, nearby sales, tax valuations, appraisals,
online resources, and any other relevant factors [here possibly rent per square foot
for comparable commercial properties] may be offered to support the [valuation].”
Id. Even if unchallenged, the testimony must support a determination, and
conclusory or speculative statements do not. Id.
In support of the measure of damages the trial court awarded, Tenant
calculated the amount of rent she would have paid to Landlord for the remaining
–21– lease term, based upon historical data, and compared that to the fair market rent she
would pay for the property she purchased for that same period of time, to arrive at
her damage calculation of $50,642.16. With respect to the fair market rental value
of the property Tenant purchased, the testimony concerning same was limited to the
following:
Q. For you to rent that space that you have now - - if you were to have it for rent, what would be the market rent for that space be?
A. 3,500 to 5,000 a month.
While Tenant may have been qualified to testify about the fair market rental
value of the building she purchased, she did not provide a proper factual basis to
support her valuation. When, as here, the evidence does not indicate the factual basis
behind the witness’s valuation, such evidence is legally insufficient to sustain a
judgment regarding the reasonable rental value of property. See Justiss, 397 S.W.3d
at 159. We sustain Landlord’s fifth issue.
Having sustained Landlord’s fifth issue, we must determine whether it is
appropriate to render judgment or remand the case for a new trial. Here, the market
rental value of the property Tenant purchased was a component of the measure of
Tenant’s damages. The other component was the rent she would have paid to
Landlord had she remained in the leased space. The evidence established Tenant
was afforded a reduced rental rate under the Commercial Lease Agreement. Because
of Landlord’s breaches of the Commercial Lease Agreement, Tenant did not obtain
–22– the benefit of the reduced rent for the entire term of the agreement. Thus, while the
evidence is legally insufficient to support the damages awarded in the amount of
$50,642.16, there is some evidence Tenant suffered damage as a result of Landlord’s
breaches.
When there is some evidence of damages, but not enough to support the full
amount, it is inappropriate to render judgment. Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009). In this
situation, we may remand to the trial court for a new trial. Formosa Plastics Corp.
USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 51 (Tex. 1998)
(holding appellate court can remand for new trial when no evidence supports
damages awarded but there is evidence of some damages); see also A.B.F. Freight
Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 616 (Tex. App.—Dallas
1990, writ denied) (finding that, although plaintiff did not prove its damages with
reasonable certainty, there was some evidence of damages generally, and interests
of justice, therefore, required remand for new trial). Because liability is contested
in this case, we cannot order a new trial solely on the issue of unliquidated damages.
See TEX. R. APP. P. 44.1(b) (appellate court may not order a separate trial on
unliquidated damages if liability is contested). Accordingly, here, we will remand
this case for a new trial on liability and damages.
–23– CONCLUSION
We reverse the trial court’s judgment awarding Tenant damages and
attorney’s fees on her breach of contract claim, remand for a new trial on Tenant’s
breach of contract claim and affirm the judgment in all other respects.
/Nancy Kennedy/ NANCY KENNEDY 230135F.P05 JUSTICE
–24– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DIANE PIWKO, Appellant On Appeal from the 429th Judicial District Court, Collin County, Texas No. 05-23-00135-CV V. Trial Court Cause No. 429-05314- 2019. STACEY ACEVEDO, Appellee Opinion delivered by Justice Kennedy. Justices Molberg and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment awarding appellee breach of contract damages and attorney’s fees. In all other respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 27th day of June 2024.
–25–