Venture v. Utsw DVA Healthcare, LLP, 05–14–00774–CV

• Decision Date: 05 October 2015
• Docket Number: No. 05–14–00774–CV,05–14–00774–CV
• Citation: 559 S.W.3d 155
• Parties: Rohrmoos VENTURE, Eric Langford, Dan Basso and Tobin Grove, Appellants v. UTSW DVA HEALTHCARE, LLP, Appellee
• Court: Texas Court of Appeals

559 S.W.3d 155

Rohrmoos VENTURE, Eric Langford, Dan Basso and Tobin Grove, Appellants
v.
UTSW DVA HEALTHCARE, LLP, Appellee

No. 05–14–00774–CV

Court of Appeals of Texas, Dallas.

Opinion Filed October 5, 2015
Reconsideration En Banc Denied November 24, 2015

James A. Pikl, Frisco, TX, for appellants.

Wade T. Howard, Alma Gomez, Houston, TX, for appellees.

Before Justices Francis, Lang –Miers, and Whitehill

MEMORANDUM OPINION

Opinion by Justice Whitehill

Rohrmoos Venture's motion for reconsideration is denied. On the Court's own motion, we withdraw our opinion dated August 3, 2015 and vacate the judgment of that date. This is now the Court's opinion.

This case involves claims for breach of the implied warranty of suitability and breach of contract arising out of a commercial lease. The jury found that both parties breached the lease, but the landlord breached first, and that the landlord breached the implied warranty of suitability. The trial court entered judgment for the tenant, UTSW DVA Healthcare, LLP ("UT"), against the landlord Rohrmoos, Eric Langford, Dan Basso, and Tobin Grove (collectively "Rohrmoos"). Rohrmoos appealed.

Rohrmoos's appellate brief presents these eight issues:¹

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(1) The parties contracted for an exclusive remedy that superseded the implied warranty of suitability.

(2)—(3) The trial court erred in admitting certain expert testimony and documents, without which there is no evidence or insufficient evidence that Rohrmoos breached the implied warranty of suitability.

(4) There is no evidence or insufficient evidence to support the jury's finding that Rohrmoos breached the implied warranty of suitability because there must be evidence of (a) defect at the lease's inception; (b) the defect must be latent and vital; and (c) the defect must exist at the lease termination.

(5) UT waived any breach of the implied warranty by remaining on the property for three years after discovering the alleged breach.²

(6) The trial court erred in awarding UT attorney's fees because (a) the lease allegedly does not provide for attorneys' fees to UT; (b) UT cannot recover its attorneys' fees under the declaratory judgment statute because UT allegedly abandoned its declaratory judgment claim; and (c) there is no evidence supporting the fee amounts the jury found.

(7) The trial court erroneously refused to disregard the jury's answers to questions 1–6 in the charge because those answers are either unsupported by the evidence, or they are matters of law which the court is solely responsible for determining; and

(8) The trial court should have entered judgment against UT because there is evidence that UT breached the lease and Rohrmoos's damages evidence was uncontroverted.

For the reasons discussed below, we affirm the trial court's judgment.

I. Background

The facts are detailed, and the record is extensive. But we discuss the facts generally because we decide this case on settled legal principles that do not need a detailed factual discussion.

Water Problems

This case revolved around water problems in a commercial building UT leased from Rohrmoos to operate as a dialysis clinic. There were extensive efforts to determine what was causing those problems. When Rohrmoos did not solve the problem, UT moved out before the lease term expired.

The Trial

After moving out, UT sued Rohrmoos and Langford for breach of the implied warranty of suitability and breach of contract.³ UT also requested a declaratory judgment that: (i) a casualty occurred in accordance with the lease, (ii) Rohrmoos failed to remedy the casualty and (iii) UT had the right to terminate the lease.

Rohrmoos answered the lawsuit and counterclaimed for negligence and breach of contract. Rohrmoos also asserted several affirmative defenses, including waiver and prior material breach.

UT asserted the following affirmative defenses in response to Rohrmoos's counterclaim:

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(i) contributory negligence, (ii) failure to mitigate damages, (iii) termination of the contract was justified due to health and safety concerns; (iv) "waiver or estoppel," and (v) statute of limitations.

Before trial, Rohrmoos moved to exclude the testimony from an engineer UT retained, Mike Stenstrom, and letters he wrote regarding the property. After two hearings, the trial court allowed some of Stenstrom's testimony and all but one section of one of his letters.

Other UT witnesses included the property engineer Boyce Farrar, the property administrator, a state inspector, the facility maintenance man, and other UT personnel involved in operating the facility. UT's witnesses testified about the water and flooring problems and the unsuccessful efforts to resolve these problems. Because the issues were not resolved, and UT was concerned about patient health and safety, it terminated the lease and moved the facility to another location.

Rohrmoos's witnesses included engineer Tom Witherspoon, a plumber, an architect, two architectural engineers, two real estate service professionals, two ceramic tile experts, two of the facility's medical directors, and others. In short, Rohrmoos elicited testimony that (i) the floor tile buckled because it was installed incorrectly and (ii) the water issues were not caused by a structural defect and did not render the facility unsuitable for a dialysis clinic.

The case was submitted to the jury after nine trial days and with over nine hundred exhibits. UT did not seek to recover damages on its breach of implied warranty or breach of contract claims. Instead, in questions 1–3, the jury was asked whether Rohrmoos failed to comply with the lease (and whether UT waived such breach), whether UT failed to comply with the lease, and if appropriate, which party failed to comply first. Question 4 asked whether Rohrmoos breached the implied warranty of suitability and whether UT waived any such breach. The charge also asked questions concerning attorney's fees for both parties that were not predicated on any affirmative liability findings.

Responding to the charge's questions, the jury found that UT and Rohrmoos both failed to comply with the lease, that Rohrmoos failed to comply first, and that Rohrmoos breached the implied warranty of suitability. The jury found attorney's fees for both UT and Rohrmoos of $800,000 for trial court representation, $150,000 for representation at the Court of Appeals, and $75,000 for representation at the Texas Supreme Court.

Based on the jury's answers, the trial court entered final judgment against Rohrmoos for the amount of attorney's fees that the jury found.

Rohrmoos subsequently moved to reform the judgment, or alternatively, for a new trial.

The trial court denied the motion, and Rohrmoos appealed.

The Appeal

Rohrmoos's appellate arguments largely center on the jury's finding that Rohrmoos breached the implied warranty of suitability. But, because we uphold the judgment on the prior material breach findings favoring UT, we need not (and do not) address in detail those issues premised on the breach of implied warranty finding.

II. Analysis

A. Rohrmoos's Second through Fifth Issues: Is the evidence sufficient to support the breach of implied warranty finding?

Rohrmoos's issues two and three argue that without Stenstrom's and Farrar's allegedly improper testimony and the complained-of

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exhibits, the evidence would be insufficient to support the jury's finding that Rohrmoos breached the implied warranty of suitability. Likewise, Rohrmoos's fourth issue argues that the evidence is insufficient to support certain elements of the implied warranty claim. Similarly, Rohrmoos's fifth issue posits that UT waived its implied warranty claim by remaining on the property for three years after allegedly discovering the breach.

All of these arguments, however, are irrelevant unless Rohrmoos also defeats the answers to questions one through three, which support UT's prior material breach of contract defense to Rohrmoos's counterclaim. But, as discussed later, Rohrmoos does not properly challenge the sufficiency of the evidence to support the jury's breach of contract findings.⁴ And unchallenged jury findings are binding on this court. Carbona v. CH Med., Inc., 266 S.W.3d 675, 687 (Tex.App.–Dallas 2008, no pet.). Accordingly, because the answers to questions one through three, which support UT's prior material breach defense to Rohrmoos's counterclaim, are binding on us, we reject Rohrmoos's issues two through five, which we need not and do not address in further detail. See, e.g., TEX. R. APP. P. 47.1 ; Zurich Fin. Ltd. v. Davis, No. 09–09–00484–CV, 2010 WL 3910360, at *6 (Tex.App.–Beaumont Oct. 7, 2010, pet. denied) (mem.op.) (where unchallenged liability finding supported judgment, challenged liability finding was not reversible error).

In addition, Rohrmoos...