Harry Hines Medical Center, Ltd. v. Wilson
| Decision Date | 15 July 1983 |
| Docket Number | No. 05-82-00292-CV,05-82-00292-CV |
| Citation | 656 S.W.2d 598 |
| Parties | HARRY HINES MEDICAL CENTER, LTD., Appellant, v. Hugh E. WILSON, Appellee. |
| Court | Texas Court of Appeals |
Robert Milbank, Jr., Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellant.
Paul W. Leech, Grand Prairie, for appellee.
Before SPARLING, ALLEN and MALONEY, JJ.
This is an appeal of a take-nothing judgment rendered against Harry Hines Medical Center, Ltd. (Harry Hines). Trial was before the court. Harry Hines sued Hugh E. Wilson for rental payments due under a lease between the parties. Harry Hines argues that the trial court erred in rendering a judgment for Wilson because the judgment does not conform to the findings of fact. It also asserts as error the exclusion of evidence of its reasonable attorney's fees. We reverse the judgment of the trial court and render judgment for Harry Hines in the amount of $39,305.73, which is the amount of unpaid rental payments, plus interest, costs and expenses, less amounts received by Harry Hines in reletting the premises, as found by the trial court. The issue of attorney's fees is remanded to the trial court for a determination of Harry Hines' reasonable attorney's fees.
The record shows that on April 15, 1975, Wilson executed a written lease agreement with 6200 Harry Hines Medical Group, Inc. for the use of an eleven office suite. The agreement called for monthly rental payments of $1,834.00 for a term of five years beginning April 15, 1975. In December of 1975, the property was acquired at a foreclosure sale by Travelers Insurance Group. Pursuant to the terms of the lease, Travelers informed Wilson that it had acquired the building and that his future rental payments "must be made in accordance with [his] lease agreement." Harry Hines acquired the property from Travelers Insurance Group on or about June 1, 1976. As part of the transaction, Travelers assigned all of its rights and obligations under existing lease agreements to Harry Hines. Wilson was notified that Harry Hines had acquired the building and he was informed of where to send his rental payments. Accordingly, Wilson remitted rental payments for the next two years.
During May of 1978, Wilson notified Harry Hines that he was vacating the premises as of August 1, 1978, for reasons of health and a desire to retire. He remained through August 31, 1978, making a rental payment for that month. He made no further rental payments, although Harry Hines continued to make demands upon him for them.
After Wilson's departure, Harry Hines permitted partial occupation of the demised premises by personnel of a nearby hospital which was under construction. This use was authorized in an attempt to expedite completion of the hospital so that new tenants could be found to relet Wilson's office suite. After the hospital was completed the space was successfully relet.
Harry Hines brought suit against Wilson for the unpaid rental payments less amounts received in reletting the premises. After trial, the court orally announced judgment for Wilson on theories of acceptance of surrender and constructive eviction. Harry Hines filed a motion for judgment on the grounds that acceptance of surrender was not raised as an affirmative defense and that there was no evidence of acceptance of surrender or of constructive eviction. After a hearing, the court rendered a judgment for Wilson. Harry Hines raised its objections again in a motion for new trial which was denied, and thereafter requested findings of fact to be filed by the trial court. The court made its findings and concluded that Harry Hines' action in allowing occupation of the premises was an acceptance of Wilson's offer of surrender and a constructive eviction of him. The court also concluded that the express provision of the lease that any acceptance of surrender be in writing, signed by the landlord, was inoperative and of no legal effect because of the constructive eviction.
Harry Hines contends that the findings of fact filed in this case support a judgment in its favor because all of the elements of its cause of action were established by the trial court's findings. For Harry Hines to prevail, it must have alleged and proved that a valid contract existed between it and Wilson; that it had the right under the contract to receive rentals from Wilson; that Wilson breached the contract; and that because of that breach it suffered damages. See Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App.--Corpus Christi 1964, no writ), Davenport v. Cabell's Inc., 239 S.W.2d 833 (Tex.Civ.App.--Texarkana 1951, no writ). The findings of fact establish: (1) the existence of a valid contract between Wilson and the original lessor, 6200 Harry Hines Medical Group, Inc.; (2) a subsequent acquisition of the property by Travelers Insurance Company; and (3) a transfer of the property and rights and obligations under existing lease agreements from Travelers to Harry Hines. It was stipulated that Travelers gave Wilson the required notice of its intent to continue under the existing lease agreement. Traveler's subsequent conveyance to Harry Hines included a valid lease agreement with Wilson. Therefore, a valid contract existed between Harry Hines, as lessor, and Wilson, as lessee. The lease created a right in Harry Hines to receive monthly rental payments of $1,834.00, and a corresponding duty in Wilson to pay such rental payments. The findings of fact also establish that Wilson made no rental payments after August 31, 1978, although nineteen months remained under the term of the lease. The trial court found that the unpaid rental payments, plus interest, costs and expenses, less amounts received from reletting the premises was approximately $39,305.73. The findings of fact establish every element of Harry Hines cause of action and also establish the amount of damages suffered by it because of Wilson's breach of the lease agreement.
The trial court erred in concluding that Harry Hines' conduct in allowing partial occupation of the premises was an acceptance of surrender that cancelled Wilson's remaining rental obligations. We have found no Texas case which finds a surrender by operation of law where the landlord evidences an intent to relet or sell the premises after the tenant has left, even if such intent is communicated to the tenant. If a landlord re-enters and relets the abandoned premises for his own benefit a tenant's obligation would cease. Wheeler v. Thomas, 328 S.W.2d 891, 896 (Tex.Civ.App.--Beaumont 1959, no writ); Flack v. Sarnosa Oil Corp., 293 S.W.2d 688, 690 (Tex.Civ.App.--San Antonio 1956, no writ). However, the evidence here shows that Harry Hines' conduct in allowing occupation of the premises after Wilson's departure was done in an attempt to mitigate the damages from non-payment of rent. See Arrington v. Loveless, 486 S.W.2d 604, 608 (Tex.Civ.App.--Fort Worth 1972, no writ). The conduct of Harry Hines, in continuing to demand rental payments after Wilson's departure, clearly indicates that it did not accept any offer of surrender. The burden was on Wilson to plead and prove that a surrender occurred. Id. at 606.
The affirmative defense of acceptance of surrender was not raised by appellee's pleadings. Rule 301 of the Texas Rules of Civil Procedure requires that the judgment of the court conform to the pleadings. Texas case law also makes it clear that a judgment not supported by the pleadings is improper. See, e.g., Payne v. Laughlin, 486 S.W.2d 192 (Tex.Civ.App.--Dallas 1972, no writ). Wilson argues that the issue was tried by consent, but viewing the record as a whole, it does not appear that the parties tried this unpleaded issue. Jay Fikes & Associates v. Walton, 578 S.W.2d 885 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). The defense of acceptance of surrender appeared for the first time when the trial court pronounced its judgment based...
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