Maida v. Main Bldg. of Houston

• Decision Date: 17 November 1971
• Docket Number: No. 528,528
• Citation: 473 S.W.2d 648
• Parties: S. J. MAIDA, Sr., d/b/a Houston Shoe Hospital, Appellant, v. The MAIN BUILDING OF HOUSTON, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 648

473 S.W.2d 648

S. J. MAIDA, Sr., d/b/a Houston Shoe Hospital, Appellant, v. The MAIN BUILDING OF HOUSTON, Appellee.

No. 528.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Nov. 17, 1971.

Thomas J. Lykos, Houston, for appellant.

John B. Scofield, Foreman, Dyess, Prewett & Henderson, Houston, for appellee.

TUNKS, Chief Justice.

This is a suit by a landlord, The Main Building of Houston, against its tenant, S. J. Maida, Sr., d/b/a Houston Shoe Hospital. The suit is on the lease agreement.

By the lease in question the landlord leased to the tenant space in a building called The Main Building of Houston. The lease was for a 10 year term beginning July 1, 1963, and ending June 30, 1973. The rent was fixed at $550.00 per month. The tenant vacated the premises in the latter part of February of 1968, being in arrears in the rent due for the months of December, 1967, and January and February of 1968. The landlord took possession when the tenant vacated.

The lease included the following paragraph:

'If the demised premises be abandoned or vacated by Lessee, or if this lease is terminated under the provisions of Article Eighth hereof, Lessor shall have the right, but not the obligation, to relet the same for the remainder of the period covered hereby; and if the rent received through such reletting is not at least equal to the rent provided for hereunder, Lessee shall pay and satisfy any deficiencies between the amount of the rent called for and that received through reletting, and all expenses incurred by any such reletting, including, but not limited to, the cost of renovating, altering and decorating for a new occupant. Nothing herein shall be construed as in any way denying Lessor the right, in case of abandonment, vacation of premises, or other breach of this contract by Lessee, to treat the same as an entire breach and at Lessor's option immediately sue for the entire breach of this contract and any and all damages occasioned Lessor thereby.'

The tenant did not have the right of subleasing except with consent of the landlord.

In 1968 the landlord leased the premises to another tenant for a three year term beginning February 1, 1969, and ending January 31, 1972. The rent provided by this second lease was $800.00 per month. By the terms of the second lease the tenant was given an option to extend for a term of two years. The premises remained vacant from the time the defendant vacated them until they were occupied by the second tenant on February 1, 1969. The second tenant had, up to the time of the trial, remained in occupancy and had paid the $800 monthly rental.

This case was tried on March 2, 1971. The recovery sought by the landlord in its trial pleading was for $7,700.00 which represents the $550 monthly rental for the 14 months beginning with December, 1967, and ending with January, 1969, during which the premises were vacant; for $3,493.81 alleged to be the expenses necessarily incurred in renovating the premises incident to reletting them to the second tenant; for items of $166.53 and $39.35, representing utilities furnished defendant during the last three months of his occupancy; and for attorney's fees as provided for in the lease contract. The landlord did not seek any recovery, on the theory of anticipatory breach, for any rents to accrue under the lease after the date of the trial.

In its trial pleading the plaintiff, landlord, plead:

'At such time, Plaintiff re-entered said premises for the purpose of reletting same for Defendant's account, recognizing the continuation of the Lease Agreement and reserving its right to hold Defendant liable for any deficiencies in rental.'

Both parties have recognized that the landlord's taking possession of the premises after the tenant vacated them was in the exercise of the landlord's contractual right provided in the first sentence of the above quoted paragraph 7 of the lease.

The quoted and summarized pleadings of the plaintiff landlord clearly show that this is a suit on the lease contract and not a suit for the breach of it. The unusual fact situation that gives rise to the questions that have arisen is in the fact that the premises, after the tenant vacated, were relet at a rental which, if it continues to accrue and to be paid until June 30, 1973, will produce more income to the landlord than the landlord would have received under the original lease.

The case was tried without a jury. The trial judge rendered the following judgment:

'It is therefore ORDERED, ADJUDGED and DECREED that Plaintiff do have and recover of and from the Defendant, S. J. MAIDA, SR., d/b/a HOUSTON SHOE HOSPITAL, the sum of THREE THOUSAND NINE HUNDRED FIFTY-TWO AND 81/100 (3,952.81) DOLLARS, attorney's fees in the amount of ONE THOUSAND AND NO/100 ($1,000.00) DOLLARS, and THREE HUNDRED THIRTY-FOUR AND 53/100 ($334.53) DOLLARS as interest at the rate of six (6%) percent per annum on ONE THOUSAND EIGHT HUNDRED FIFTY-EIGHT AND 59/100 ($1,858.59) DOLLARS from March 1, 1968, with interest on the total Judgment of FIVE THOUSAND TWO HUNDRED EIGHTY-SEVEN AND 34/100 ($5,287.34) DOLLARS at the rate of six (6%) percent per annum from the date of judgment, and its costs in this behalf expended, and if it be not seasonably paid, execution may issue thereon.'

The findings of fact and conclusion of law filed by the trial judge include findings that the defendant tenant was indebted to the landlord plaintiff for $1858.59, the amount of rent and utility payments that had accrued and were unpaid at the date the tenant vacated the premises, and for $2,094.22 the amount found by the trial judge to represent the renovating expense necessarily incurred as an incident to releting the premises. These two items make up the $3,952.81 award in the judgment rendered.

There is no complaint as to the trial judge's findings of fact. Rather it is the contention of the appellant tenant that the trial court applied an erroneous measure of recovery.

Under the language of the usual lease contract there are a number of alternatives available to a landlord when the tenant, without justification, abandons the leased premises and stops paying the rent due. The landlord may decline to retake possession of the premises and sue for the rent provided by the...