Holloway v. Zapara, 14556
| Citation | 412 S.W.2d 943 |
| Decision Date | 01 March 1967 |
| Docket Number | No. 14556,14556 |
| Parties | Joe HOLLOWAY, Appellant, v. Don L. ZAPARA, Appellee. . San Antonio |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Lagerquist, Shaw & Davis, San Antonio, for appellant.
Luther Rutherford, San Antonio, for appellee.
Lessor, Joe Holloway, brought this suit against lessee, Don L. Zapara, to recover rent and attorneys' fees due under a lease agreement, as well as for physical damages to the leased premises. The trial court rendered judgment, after a non-jury trial, that lessor recover his attorneys' fees and for physical damages to the premises, but limited his recovery under the lease agreement to the rent which was owed at the time lessee abandoned the premises. No findings of fact or conclusions of law were filed herein.
On September 27, 1961, Zapara entered into a written agreement to lease business property in San Antonio for a term of five years, beginning October 1, 1961. As consideration therefor, he agreed to make certain improvements to the premises which would become the property of lessor, and to pay rent at the rate of $75.00 per month during the first three years and $85.00 per month during the remaining two years. The first and last months' rent were paid in advance.
The rent was not paid after December 31, 1963, and in June, 1964, lessee abandoned the premises. The trial court credited the advance payment to January, 1964, and awarded lessor the sum of $375.00, being the rent due for the months of February through June, 1964. Lessor also recovered attorneys' fees of $425.00, and the sum of $700.00 for physical damages to the premises caused by the wrongful removal by lessee of several fixtures and the resulting damage to the structure.
Lessor complains on this appeal only of the denial of any recovery for the rent owed for the remainder of the term. The question presented is whether the record supports the implied findings by the trial court that lessee had an obligation to exercise due diligence to re-let the premises and that by the exercise of same, the leased premises could have been re-let the remainder of the term for a sum equal to the rent owed by lessee under the agreement. There is no contention that lessor assumed such an obligation at the time lessee abandoned the premises to him, and therefore this obligation must be found in the lease agreement in order to support the implied finding of the court.
The lease provides that in case of default of any covenant, 'lessor may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at lessor's discretion if such default continue for a period of ten days after lessor notifies said lessee of such default and his intention to declare the lease forfeited,' and thereupon 'this lease shall cease and come to an...
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Metroplex Glass Center, Inc. v. Vantage Properties, Inc.
...damages was not established as a matter of law, no duty exists to mitigate damages unless that duty is imposed by the lease. Holloway v. Zapara, 412 S.W.2d 943, 944 (Tex.Civ.App.--San Antonio 1967, no writ); Silbert v. Keton, 29 S.W.2d 824, 826 (Tex.Civ.App.--Waco 1930, writ ref'd). Since t......
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Warncke v. Tarbutton
...lease agreement alive, relet the premises for the remainder of the unexpired term 1 and held lessees liable for any deficiency. Holloway v. Zapara, 412 S.W.2d 943 (Tex.Civ.App.--San Antonio 1967, no writ); Evons v. Winkler, 388 S.W.2d 265 (Tex.Civ.App.--Corpus Christi 1965, writ ref'd n.r.e......