Warehouse Partners v. Gardner

• Decision Date: 27 July 1995
• Docket Number: No. 05-94-01725-CV,05-94-01725-CV
• Citation: 910 S.W.2d 19
• Parties: WAREHOUSE PARTNERS and Glendale Management Co., Appellants, v. Robert GARDNER, Appellee.
• Court: Texas Court of Appeals

Page 19

910 S.W.2d 19

WAREHOUSE PARTNERS and Glendale Management Co., Appellants, v. Robert GARDNER, Appellee.

No. 05-94-01725-CV.

Court of Appeals of Texas,

Dallas.

July 27, 1995.

Scott A. Scher, Scher & Gold, LLP, Dallas, for Appellants.

Lynn G. Warren, Lindy D. Jones, Jones Allen & Fuquay, LLP, Dallas, for Appellee.

Before LAGARDE, OVARD and WRIGHT, JJ.

OPINION

LAGARDE, Justice.

Warehouse Partners and Glendale Management Company appeal from the county court at law's judgment granting Robert Gardner a writ of reentry. Appellants bring eighteen points of error generally contending that: (a) the findings of fact do not support the judgment; (b) no evidence or insufficient evidence supports the findings of fact; (c) the trial court's conclusions of law are erroneous; (d) the trial court erred in admitting certain evidence; and (e) the trial court's judgment provides relief not requested in the pleadings. Gardner brings one crosspoint requesting rule 84 sanctions. We overrule the points of error and the crosspoint and affirm the trial court's judgment.

FACTUAL BACKGROUND

Gardner is a manufacturer's representative. He owns his own business as a sole proprietorship, Gardner Marketing Group, based in Dallas. He also is a vice president for a Massachusetts-based business, Safety First, Inc. These businesses require Gardner to spend substantial time traveling outside Dallas. Gardner owns a condominium in Massachusetts and has an office in the offices of Safety First in Massachusetts. Gardner also owns a house in Dallas. Appellant Glendale Management Co. is an agent for appellant Warehouse Partners, the owner of the Lease Space. George Burch is a part owner of Glendale Management Co. and is a general partner of Warehouse Partners.

Gardner decided to consolidate his office and home. He leased a warehouse, the Lease Space, from appellants, with Gardner Marketing Group designated as the tenant, and discussed with appellants having an apartment and office built into it. Appellants drew up the plans for the apartment and office and built it. With the help of an interior designer, Gardner furnished the apartment. He had an industrial kitchen installed. With appellants' aid, he obtained residential rates for the utilities installed in the apartment. In anticipation of his moving into the apartment, Gardner rented his Dallas house. When the apartment was almost finished, Gardner moved into it. He has resided in the Lease Space whenever he has been in Dallas from the time he moved in until the time of trial, except for the period he was locked out. He testified that he has spent an average of fifteen days each month in the Lease Space over the term of the lease. ¹ All of his mail, except for the utilities on his Massachusetts condominium, is delivered to the Lease Space. He has a tenant's homeowner's insurance policy on the Lease Space.

In 1994, Gardner ran advertisements in the Dallas Observer about subleasing the Lease Space. Gardner testified that his intent was to determine whether a market existed to sublease the Lease Space during the extensive time he traveled. He received many responses to the advertisement, but he did not extend any offers to sublease the Lease Space. Gardner tried to arrange a meeting with Burch to discuss subleasing the Lease Space, but the meeting never occurred.

In April 1994, Gardner failed to pay the correct amount of rent. Appellants changed the locks on the Lease Space. Gardner demanded a key to the Lease Space from appellants, but they refused. Gardner filed suit in the justice court seeking a writ of reentry. In the complaint filed in the justice court, Gardner alleged that appellants had conducted an unlawful lockout by not giving him a key to the new locks as required by section 92.008 of the Texas Property Code. After an ex parte hearing in the justice court, Gardner obtained a writ of reentry, and appellants gave him a key to the apartment. The justice court held a full hearing on the merits of the writ and again decided for Gardner. Appellants then filed an appeal by trial de novo in the county court at law. After a bench trial on the merits, the county court at law ruled that Gardner was entitled to the writ of reentry.

FINDINGS SUPPORTING THE JUDGMENT

In their first point of error, appellants contend that the findings of fact do not support the trial court's judgment. Appellants assert that before the court could find that they violated the residential lockout statute, the court had to find that the apartment was a "dwelling," which the property code defines as a "permanent residence." See TEX.PROP.CODE ANN. § 92.001(1) (Vernon 1995). ² The trial court found that the apartment was Gardner's residence, but the findings do not expressly state that the apartment was his permanent residence. Appellants assert that under Texas Rule of Civil Procedure 299 the trial court's failure to find the "permanent" requirement leaves the judgment unsupported. See TEX.R.CIV.P. 299.

Appellants overlook the fact that rule 299 permits findings of an element of a cause of action or ground of defense supported by the evidence to be presumed when another element of that cause of action or ground of defense is included in the trial court's findings. See TEX.R.CIV.P. 299. ³ One of the elements of Gardner's cause of action for writ of reentry was that he was not given a key to the premises when he demanded one. See TEX.PROP.CODE ANN. §§ 92.008(d)(2), 92.009(b) (Vernon 1995). The trial court's ninth finding of fact states, "Pursuant to Texas Property Code § 92.008, Gardner orally requested that he be given the new key so he could have access to his residence, but was refused." Because the trial court found an element of the cause of action, the element of permanent residence could be supplied by presumption if any evidence in the record supports it.

The property code does not define "permanent" residence, the parties do not cite any case defining it nor has our research revealed any, and the parties have not offered any definitions of "permanent." A "permanent" residence is distinguishable from a temporary residence, such as a hotel or motel. The property code describes those residences as "transient housing." See TEX.PROP.CODE ANN. § 92.152(a) (Vernon 1995).

In this case, the record shows that for nearly two years prior to the lockout, Gardner had used the Lease Space as his residence. We conclude that this evidence constitutes some evidence that the Lease Space constituted Gardner's "permanent residence" and therefore his "dwelling." Thus, the express and presumed findings support the trial court's judgment applying the lockout provisions of section 92.008 to Gardner and appellants. We overrule appellants' first point of error.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their second through tenth points of error, appellants contend that no evidence or insufficient evidence supports the trial court's findings of fact. In their eleventh through thirteenth points of error, appellants contend that the trial court erred in making certain conclusions of law.

Standard of Review

Findings of fact in a case tried to the court have the same force and effect as a jury's verdict on jury questions. Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158 (Tex.App.--Dallas 1992, writ denied); City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). We review the trial court's findings of fact by the same standards that are applied in reviewing the evidence supporting a jury's answers. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.--Houston [14th Dist.] 1990, no writ).

In reviewing a no-evidence point of error, we consider only the evidence and inferences that support the challenged finding. Gregory, 835 S.W.2d at 158. All contrary evidence and inferences are disregarded. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We uphold the trial court's findings if there is more than a scintilla of evidence to support them. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979).

In reviewing a factual-sufficiency point of error, we consider all of the evidence. A finding will be set aside only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is wrong and manifestly unjust. Gregory, 835 S.W.2d at 158.

Challenges to the trial court's conclusions of law are reviewed as a matter of law, not on sufficiency of the evidence grounds. McLendon v. McLendon, 862 S.W.2d 662, 674 (Tex.App.--Dallas 1993, writ denied); Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.), overruled on other grounds by Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex.1991) (sufficiency of waiver of notice of intent to accelerate). An erroneous conclusion of law is not binding on this Court. Bantuelle v. Williams, 667 S.W.2d 810, 818 (Tex.App.--Dallas 1983, writ ref'd n.r.e.) (per curiam). When a party attacks conclusions of law on appeal, we have the power and the duty to evaluate those conclusions. MJR Corp. v. B & B Vending Co., 760 S.W.2d 4, 10 (Tex.App.--Dallas 1988, writ denied). A trial court's application of law to facts is accorded limited deference. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). A failure of the trial court to analyze or apply the law correctly is an abuse of discretion. Walker, 827 S.W.2d at 840.

The Lease Space as Gardner's Residence

In their second point of error, appellants contend that there is no evidence or insufficient evidence to support the trial court's finding that Gardner signed the lease in his individual capacity. The record shows that the tenant was Gardner Marketing Group, by Robert Gardner. Because Gardner Marketing Group is a sole proprietorship, and Texas law does not recognize a distinction between an individual and his sole proprietorship, Gardner's signature...