Huddleston v. Pace

• Decision Date: 18 April 1990
• Docket Number: No. 04-89-00244-CV,04-89-00244-CV
• Citation: 790 S.W.2d 47
• Parties: H. Glenn HUDDLESTON and Harper/Huddleston Development, Inc., Appellants, v. Patricia E. PACE and R. Wesley Pace, Patricia E. Pace, Inc. d/b/a The Finale and Special Moments, Appellees.
• Court: Texas Court of Appeals

Page 47

790 S.W.2d 47

H. Glenn HUDDLESTON and Harper/Huddleston Development, Inc. Appellants, v. Patricia E. PACE and R. Wesley Pace, Patricia E. Pace, Inc. d/b/a The Finale and Special Moments, Appellees.

No. 04-89-00244-CV.

Court of Appeals of Texas San Antonio.

April 18, 1990.

Rehearing Denied May 24, 1990.

Ty Griesenbeck, Jr., Cathy J. Sheehan, Plunkett, Gibson & Allen, San Antonio, for appellants.

Tom Joseph, Law Office of Tom Joseph, San Antonio, for appellees.

Before BUTTS, CHAPA and PEEPLES, JJ.

OPINION

BUTTS, Justice.

This is a limited appeal from a jury trial in which appellants were found liable for negligence and constructive eviction. Appellants are challenging the court's award of $130,000 in attorney fees and $5,000 in mental anguish damages.

The relationship underlying the original suit stemmed from two lease agreements for two separate properties owned by appellants. Patricia E. Pace, Inc. was the corporate commercial tenant of the property that was doing business as Special Moments, and Patricia E. Pace, individually, was the tenant of the second property which was operated as The Finale. Appellees brought suit for damages arising out of a construction project instigated by appellant as landlord.

After hearing evidence as to the causes of action, the jury found that appellants were negligent in construction at Special Moments and had constructively evicted the corporate tenant, Patricia E. Pace, Inc.; however, the jury affirmatively found no breach of the lease agreement. The jury further found that appellants were not liable on the lease with Patricia E. Pace, individually, which was for operation of The Finale, and additionally awarded appellants judgment on their counterclaim for failure to comply with the lease. However, the jury awarded $5,000 to Patricia E. Pace, individually, for mental anguish. Appellees were also awarded $130,000 in attorney fees. Appellants bring three points of error.

In point one, appellants contend that the trial court erred in rendering judgment for attorney fees because there is no statutory basis for the award. We agree. Generally, attorney fees are not recoverable in an action for tort, such as negligence or constructive eviction, unless provided by statute. See New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967). Statutory provisions for the recovery of attorney fees are penal in nature, and must be strictly construed. Id. In a post-trial proceeding, appellees asserted that the 1987 version of TEX.PROP.CODE ANN. § 92.008, entitled Interruption of Utilities and Exclusion of Tenant, provided the statutory basis for their attorney fee award. This statute permits the recovery of reasonable attorney fees for violations of the statute and contains specific provisions applicable to commercial tenants. Appellants argue that appellees' reliance upon § 92.008 is improper since that provision was not enacted until August 1987, and the applicable statute at the time the cause of action accrued in 1985 was § 91.002, which was later renumbered and amended to become § 92.008. Section 91.002 contained no specific provisions for commercial tenants, and has been interpreted to apply to residential tenants only. See Design Center Venture v. Overseas Multi-Projects Corp., 748 S.W.2d 469 (Tex.App.--Houston [1st Dist.] 1988, writ denied) (detailing the legislative history of § 91.002).

A review of both § 92.008 and § 91.002 as asserted by the parties fails to reveal a statutory cause of action which would comport with those pleaded and proven at trial. TEX.PROP.CODE ANN. § 92.008(a) prohibits the landlord from interrupting utility service paid directly to the utility company by a tenant "unless the interruption results from bona fide repairs, construction or an emergency". Subsection (b) of § 92.008 states that:

A landlord may not intentionally prevent the tenant from entering the leased premises except by judicial process unless the exclusion results from:

(1) bona fide repairs, construction, or an emergency;

(2) removing the contents of premises abandoned by a tenant; or

(3) changing the door locks of a tenant who is delinquent in paying at least part of the rent.

Subsection (c) defines the circumstances when a commercial tenant is presumed to have abandoned the premises. Subsection (d) sets out the rules the landlord must follow in removing, storing and disposing of property abandoned by a commercial tenant. Subsections (e) and (f) prescribe the requirements for changing the door locks of residential and commercial tenants in the event of delinquent rent. Subsection (g) sets out the tenant's possible recoveries for statutory violations ("either recover possession of the premises or terminate the lease," and "actual damages, one month's rent, and reasonable attorney's fees, less any delinquent rents or other sums for which the tenant is liable"). Subsection (h) states that only commercial leases may override the statute. Only subsections (c), (d), (f) and (h) specifically address commercial tenants.

Under § 91.002, in effect at the time the cause of action accrued, subsections (a) and (b) are identical to those in § 92.008. Subsection (c) describes the steps to be followed in changing the door lock of "a tenant" who is delinquent in paying rent. Subsection (d) is substantially similar to the recovery portion of § 92.008, and (e) asserts that "a provision of a lease" which waives any rights conveyed by the statute or exempts any party is void. Section 91.002 contained no provisions similar to § 92.008(c) or (d) which address commercial tenants.

A review of Plaintiffs' Eighth Amended Original Petition reveals that appellees did not seek to assert rights or recover remedies provided by either Property Code statute. The pleadings failed to allege any cause of action for interruption of utilities, intentionally preventing the tenant from entering the premises, or changing the locks for delinquent rent. There were no allegations that appellees abandoned the premises or that appellant attempted to remove, store or dispose of the appellees' property. Further, there was no mention of the statute itself, nor were there claims for any of the statutory remedies except a general prayer for reasonable attorney fees. The petition must contain a clear and concise statement of the plaintiff's cause of action and must give fair notice of the claim involved. TEX.R.CIV.P. 47; Jay Fikes and Assoc. v. Walton, 578 S.W.2d 885, 889 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). A party must recover on the right in which he sues and upon proof of the facts stated in his pleadings, and he cannot recover through a right not asserted. Walton, 578 S.W.2d at 889. Appellees' pleadings contain nothing that would give appellant fair notice that they intended to assert any rights conferred by § 91.002 or § 92.008 of the Property Code.

Moreover, no statutory basis is reflected in the issues submitted to the jury regarding appellant's conduct. The causes of action submitted to the jury were negligence, gross negligence, breach of lease, intentional infliction of emotional distress, and constructive eviction.

Therefore, we find that appellees did not plead or prove any acts constituting violations of either statute. Consequently, we do not reach the question of which statute applies. Appellees' asserted statutory basis for the award of attorney fees is not supported by the pleadings or the jury issues.

Appellees also defensively assert that they are entitled to recovery under TEX.CIV.PRAC. & REM.CODE ANN § 38.001, formerly TEX.REV.CIV.STAT.ANN. art. 2226, which provides that:

A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

. . . . .

(8) an oral or written contract.

A condition precedent to the recovery of attorney fees under Art. 2226 (now § 38.001) is the pleading and proof of a "valid claim" as described in the statute, and a judgment obtained on that claim. See Corpus Christi Dev. Corp. v. Carlton, 644 S.W.2d 521, 523 (Tex.App.--Corpus Christi 1982, no writ); North American Corp. v. Allen, 636 S.W.2d 797, 800 (Tex.App.--Corpus Christi 1982, no writ). See also Jay-Lor Textiles, Inc. v. Pacific Compress Warehouse Co., 547 S.W.2d 738, 743 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.) (interpreting former Art. 2226 which specifically stated that plaintiff "should finally obtain judgment").

In the instant case, it would be necessary that appellees plead, prove and prevail on their contractual claim. The record reflects that appellees prevailed on their claims for constructive eviction and negligence only.

While the concepts of contract law and property law are intermingled in the landlord/tenant relationship, constructive eviction has been established as a tort. Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 526 (Tex.App.--El Paso 1983, writ ref'd n.r.e.). The general requirements for constructive eviction are: (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 proven; (2) a material act by the landlord or those acting for him that substantially interferes with the use and enjoyment of the premises for the purposes for which they are let; (3) the act must permanently deprive the tenant of the use and enjoyment of the premises; and (4) the tenant must abandon the premises within a reasonable time after the commission of the act. Id. (citations omitted). In the instant case, the jury instruction is identical to the elements set out in case law for the tort of constructive eviction. Consequently, the appellees' intention in submitting the issue of constructive eviction was to prevail on a tort claim. The issue of negligence was also successfully submitted as a tort claim. These tort claims provide no statutory basis for the award...