Marynick v. Bockelmann

• Decision Date: 31 May 1989
• Docket Number: No. 05-88-00552-CV,05-88-00552-CV
• Citation: 773 S.W.2d 665
• Parties: Samuel P. MARYNICK and Sharon Kay Marynick, Appellants, v. Brenda Lewellen BOCKELMANN, Appellee.
• Court: Texas Court of Appeals

Page 665

773 S.W.2d 665

Samuel P. MARYNICK and Sharon Kay Marynick, Appellants, v. Brenda Lewellen BOCKELMANN, Appellee.

No. 05-88-00552-CV.

Court of Appeals of Texas,

Dallas.

May 31, 1989.

Rehearing Denied July 11, 1989.

Andrew Barr, Dallas, for appellants.

Gordon Bogen, for appellee.

Before STEWART, ROWE and OVARD, JJ.

STEWART, Justice.

Samuel P. Marynick and Sharon Kay Marynick, landlords, sued Brenda Lewellen Bockelmann and her former husband Hermann O.W. Bockelmann, tenants, for past due rent, for repairs necessitated by the tenants' failure to maintain the premises, and for unpaid loan payments on a loan from Samuel Marynick to Hermann Bockelmann. The trial court entered judgment for the Marynicks against Hermann Bockelmann but ordered that the Marynicks take nothing against Brenda Bockelmann. The Marynicks appeal from the take-nothing judgment in favor of Brenda. In two points of error, the Marynicks contend that the trial court erred in entering the take-nothing judgment because Brenda, as a signatory on the lease, was liable for unpaid rent for the holdover terms when her husband remained in possession of the premises beyond the initial lease term. The Marynicks also argue that Brenda was liable under the loan agreement signed by her husband because, under the Texas Family Code, one spouse is obligated by a contract signed by the other spouse. We conclude that Brenda is not liable under the loan contract Hermann signed. However, we agree that Brenda is liable under the lease for unpaid rent accrued during the holdover terms of the lease and for stipulated damages for failing to maintain the premises. Accordingly, we reverse the trial court's take-nothing judgment, render judgment in the amount of the unpaid rent and stipulated damages, and remand for determination of the amount of attorney's fees.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

We first note that the Marynicks did not request, and the trial court did not file, findings of fact and conclusions of law. Where there are no findings of fact in an appeal from a trial before the court, this court must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984). Thus, we must examine the evidence in the record and the law applicable to the case to determine if the law and the facts support the trial court's take-nothing judgment. In doing so, we will imply all necessary fact findings in support of the judgment. Id.

II. FACTS

Brenda Bockelmann and her then husband Hermann Bockelmann rented one-half of a duplex from the Marynicks in 1978. In 1984, the parties entered into a new lease agreement for the same premises. In the lease, Sam and Sharon Marynick were designated "Lessor" and Hermann and Brenda Bockelmann were designated "Tenant". Both Hermann and Brenda signed the lease in the space designated for "Tenant". The lease provided for a twelve-month term beginning March 1, 1984, and ending February 28, 1985. The lease also included the following holdover provision:

Should Tenant remain in possession of the demised premises with the consent of Lessor after the natural expiration of this lease, a new tenancy from year to year shall be created between Lessor and Tenant which shall be subject to all the terms and conditions hereof but shall be terminable by 60 days written notice.

Brenda separated from her husband and vacated the leased premises on February 18, 1985, ten days before the expiration of the initial term of the lease. Hermann remained in possession of the premises until September 7, 1986, during the second holdover term.

During the spring and summer of 1985, Hermann told the Marynicks that he was experiencing financial difficulties. Rent for the months of May, June, and July 1985 was not paid. On July 15, 1985, Hermann and Samuel entered into a contract suspending the payment of rent from May 1985 through November 1985. These rental payments were characterized as a loan of $5,950 from Samuel Marynick to Hermann Bockelmann, with interest at nine and one-half percent. Rental payments were to resume in December 1985, and repayment of the loan was to begin January 1, 1986, and to continue through January 1, 1987. Hermann was to pay twelve installments of $550, and a final payment of $212.08. These loan payments were to be in addition to the monthly rental payments of $850. Only Hermann and Samuel signed this loan agreement.

The contract payments for January 1986 through June 1986 were paid, as were the monthly rental payments for November 1985 ¹ through June 1986. The loan and rental payments for July 1986 through January 1987, however, were not paid, nor was the February 1987 rent.

It is undisputed that Brenda did not give notice to the Marynicks that she had vacated the leased premises. Hermann testified that he called Sharon Marynick some time after Brenda moved out to tell her that his wife had left him. Samuel Marynick testified that he did not find out until late spring or early summer 1985 that Brenda had moved out. He testified that Hermann told him Brenda was no longer living there, but that Hermann said that there was going to be a reconciliation. Samuel Marynick stated that he saw Brenda at the rental unit "fairly often" between May 1985 and September 1986.

Brenda filed for divorce in January 1986, and the court entered the decree of divorce in April 1986. Samuel Marynick testified that he received no notice of the divorce. The first time he became aware that Brenda and Hermann would not reconcile was in December 1986. He had a conversation with Brenda's sister at a local store; although the word "divorce" was not used, he came away with the feeling that the separation was permanent.

III. LIABILITY UNDER THE LEASE

In their first and second points of error, the Marynicks argue that Brenda is liable under the lease because she entered into that agreement as a party, and as a party to the lease she was obligated to perform the lease terms so long as the lease remained in effect. We agree that, generally, joint and several liability arises when two or more persons cosign a contract. Trinity Universal Ins. Co. v. Drake, 587 S.W.2d 458, 465 (Tex.Civ.App.--Dallas 1979), aff'd in part, rev'd in part on other grounds, 600 S.W.2d 768 (Tex.1980). It is undisputed that Brenda signed the lease agreement.

Thus, the only legal issue to resolve is how long the lease remained in effect as to Brenda. Brenda would have us hold that the lease terminated as to her after the expiration of the initial term because she did not remain in possession beyond the initial term of the lease. The Marynicks argue that the lease continued as to both Hermann and Brenda until February 28, 1987, because Hermann remained in possession past the initial term and through a second holdover term when Hermann remained in possession after the first holdover term.

A. HOLDING OVER

Although this case involves a contractual holdover term, we look to cases concerning common law holding over in order to resolve the issue of whether the holdover of one tenant constitutes a holdover for all tenants obligated under the lease. It is well settled at common law that when a tenant holds over, a new lease for the same term is created. See Turton v. Pyland, 567 S.W.2d 247, 248 (Tex.Civ.App.--Dallas 1978, no writ); Eckstine v. Webb Walker Jewelry Co., 178 S.W.2d 532, 536 (Tex.Civ.App.--Fort Worth 1944, writ ref'd). A second holdover year is created by holding over in a similar manner as under the first holdover year. Jones v. Winter, 215 S.W.2d 654, 656 (Tex.Civ.App.--Amarillo 1949, writ ref'd n.r.e.); Hunger v. Toubin Bros., Inc., 164 S.W.2d 765, 766 (Tex.Civ.App.--Austin 1942, writ dism'd). The right of the landlord to hold a holdover tenant for another term is not affected by the length of time the tenant holds over but will arise if the tenant holds over a few days or for a single day, unless the circumstances are such as to excuse the holding over. Hunger, 164 S.W.2d at 767.

There is little Texas authority concerning what acts constitute holding over so as to create a new lease. Certainly, when the sole tenant obligated under a lease remains in possession, a new lease is created. See, e.g., Barragan v. Munoz, 525 S.W.2d 559, 561 (Tex.Civ.App.--El Paso 1975, no writ). When both tenants under a lease remain in possession, that holdover creates a new lease as to both. See, e.g., Turton, 567 S.W.2d at 248. A holdover by an assignee of the original lease also creates a new lease. Hunger, 164 S.W.2d at 768. In Hunger, Toubin Brothers, a partnership, signed the lease as tenant. Thereafter, the partnership was converted into a corporation without a change of business and that business was carried on by the corporation in the same building. The court held that, as a matter of law, the corporation assumed the lease and, as assignee, created a new term by holding over. Id. at 767.

We have found only one authority that addresses the facts presented in the case at bar, where one of two tenants vacates and the other holds over. The only case in point that has come to our attention is Fronty v. Wood, 20 S.C.L. (2 Hill) 367 (1834). The court there held that where a lease is to two tenants jointly and only one occupies after the expiration of the initial lease term, the holding will be presumed to be by both, and both will be liable unless the tenant not in actual possession gives notice to the lessor that he ceases to hold. Id. at 368. Under Texas law, such notice would have to be given prior to the commencement of the holdover term. Hunger, 164 S.W.2d at 766.

We conclude that the correct rule for holding over when two tenants are jointly obligated under the lease is expressed in Fronty v. Wood for the following reasons. As long as one tenant remains in possession, it would appear to the landlord that the situation had not changed, that the premises were not vacant and available for...