Look v. Werlin, 17454

• Decision Date: 06 September 1979
• Docket Number: No. 17454,17454
• Citation: 590 S.W.2d 526
• Parties: Gary R. LOOK, Appellant, v. Eugene WERLIN, Jr. et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 526

590 S.W.2d 526

Gary R. LOOK, Appellant, v. Eugene WERLIN, Jr. et al., Appellees.

No. 17454.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Sept. 6, 1979.

Wheat, Thornton & Burnett, William L. Burnett, Houston, for appellant.

Baker, Brown, Sharman, Wise & Stephens; Michael Andrews, Houston, for appellees.

EVANS, Justice.

This is an appeal by the defendant-lessee, Gary Look, from a judgment in favor of the plaintiffs-lessors in a suit for anticipatory breach of a commercial lease of a portion of a shopping center owned by the plaintiffs. The trial court sitting without a jury entered judgment against Look for $29,296.00 as damages plus $1,500.00 for attorney's fees and entered a take nothing judgment against two other defendants, F. O. Fowler and Fowler-Look Veterinary Clinic. The trial court found that Look was individually liable because he had signed the lease in his individual capacity.

The defendant Look does not contest his liability for such damages as may have resulted from his anticipatory breach of the lease. He, however, questions the legal and factual sufficiency of the evidence to establish the essential elements of damages under the cause of action alleged.

The measure of damages for anticipatory breach of a lease where the lessor does not relet the premises or exercise such control over the premises as to exclude the lessee from possession is "the difference between the present value of the rental contracted for in the lease and the reasonable cash market value of the lease for its unexpired term". John Church Co. v. Martinez,204 S.W. 486, 489 (Tex.Civ.App. Dallas 1918, writ ref'd); Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App. El Paso 1976, writ ref'd n. r. e.).

The plaintiff, Eugene Werlin, Jr., testified that the leased premises had been specially prepared for use as a veterinary clinic and that the defendants had used the premises as a veterinary clinic, making rental payments each month from December 1, 1973, until August 1, 1976. Thereafter, the defendants abandoned the premises, and although the plaintiffs had made diligent efforts to relet the premises, they were unable to do so at the time of trial in November 1978. The plaintiff, Werlin, testified, in effect, that the leased premises had a market value if relet but that it had a market value only in the event it could be relet. The trial court found that the plaintiffs had made every reasonable effort to relet the premises, that the premises were vacant at the time of trial, and that the property would likely remain unrented for the remainder of the lease term due to the nature of its renovation as a veterinary clinic.

In support of his contention that the plaintiffs failed to establish the element of the reasonable rental value of the premises for the period following the lessee's abandonment, defendant, Look, relies upon Cantile v. Vanity Fair Properties, 505 S.W.2d 654 (Tex.Civ.App. San Antonio 1974, writ ref'd n. r. e.); and Warncke v. Tarbutton, 449 S.W.2d 363 (Tex.Civ.App. San Antonio 1969, writ ref'd n. r. e.). These cases are factually distinguishable from the case at bar. In Cantile, the lessor's witness testified, in effect, that the lease had no market value because it was not paying any rental. The San Antonio Court of Civil Appeals, speaking through Chief Justice Cadena, held that the only conclusion which could be drawn from such testimony was that the lessor was referring to the amount of the rentals received, rather than to the reasonable market value of the premises. In War...