Sky Interests Corp. v. Elle Moisdon ( 2019 )

AFFIRMED and Opinion Filed July 30, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00160-CV
SKY INTERESTS CORP., Appellant
V.
ELLE MOISDON, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 1-16-0782
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Reichek
In this appeal following a partial summary judgment and jury trial, Sky Interests Corp.
asserts the trial court erred in (1) failing to award prejudgment interest on the amount awarded to
it in the partial summary judgment, (2) misapplying Texas Property Code Section 93.002, and (3)
refusing to submit a proposed jury question on abandonment. Sky Interests further contends the
evidence is insufficient to support the jury’s award of damages for conversion. Elle Moisdon
brings one cross-issue challenging the summary judgment granted in favor of Sky Interests on its
claim for breach of contract. Moisdon also asserts a conditional cross-issue addressing pre-
judgment interest on her conversion award. For the reasons set forth below, we affirm the trial
court’s judgment.
Background
On May 14, 2013, Moisdon signed an agreement with Sky Interests to lease a property in
Rockwall, Texas for a period of five years. The property was to be used as a restaurant. The lease
agreement stated that any rent payment made after the tenth day of the month would be assessed a
10% late payment fee. The lease further stated that if Moisdon defaulted in payment of the rent,
or any part thereof, Sky Interests could terminate the lease and “repossess and enjoy the leased
property and any buildings and improvements situated thereon without such a re-entry and
repossession working a forfeiture of the rents to be paid.” Moisdon agreed to “indemnify and save
harmless [Sky Interests] from any loss arising from such default, termination, and/or re-entry.”
Moisdon also agreed that Sky Interests would not be liable for any losses suffered to her property
except to the extent such losses were “occasioned by the gross negligence or intentional acts of
[Sky Interests].”
Moisdon officially opened her restaurant in January 2014. According to Moisdon,
construction occurring in front of the premises made it difficult for her to attract business. In
August 2014, Moisdon did not tender a check for her rent until the 11th day of the month, one day
after the late fees accrued. The check was later returned for insufficient funds.
On August 21, Moisdon arrived at the restaurant to discover she had been locked out. The
notice posted to the door stated that if Moisdon paid the August rent, late fees, and a lock-out fee,
she could obtain the new keys to the premises from the property manager, Teresa Dickerson.
Moisdon went to Sky Interests’s offices, which were in the same building as the restaurant, to
speak to Dickerson. Moisdon stated Dickerson walked her into the restaurant and allowed her to
remove her personal laptop, a reservation book, and customer lists. Moisdon testified she later
called Dickerson and asked how she could get the remainder of her belongings and was told the
only way she could re-enter the premises was to pay the full amount owed including the fees.
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On September 9, Moisdon left a letter outside the door to Sky Interests’s offices demanding
the return of her personal property including all equipment, kitchen items, furniture, decorative
items, and inventory. When she received no response, she hired an attorney who sent a letter to
Sky Interests on September 11. This letter stated that one of Moisdon’s primary concerns was the
safekeeping of her equipment and inventory. The letter further stated that if Sky Interests or its
agents began removing Moisdon’s property from the premises, they would take action to protect
her rights.
Moisdon stated she called Sky Interests numerous times in September and October to
resolve their issues. On October 14, Moisdon went to the restaurant and looked in the windows to
make sure her things were still there. She stated she noticed items were missing, such as some of
the wine from the wine rack.
Four days later, Moisdon was informed by friends that her property at the restaurant was
going to be sold. Moisdon went to the restaurant that night and saw a sign on the door that said
“Blow Out Sale.” The next day, she went to the police to tell them her things were being
improperly sold. She left after being told it was a civil matter and there was nothing they could
do.
Moisdon then went to the restaurant and found the sale occurring. She went in the doorway
and saw her property being sold by Sky Interests’s employees. Moisdon said she approached one
of the employees and asked him why they were selling her things instead of allowing her to pay
the rent. She asserts the employee responded, “[W]e’ve done this before.” The employee called
the police after he saw Moisdon take some of the property and put it into her car. The police came
and Moisdon was issued a criminal trespass warning.
On October 28, Dickerson sent Moisdon a letter stating they were terminating her lease as
of October 31, 2014. On the day the lease was supposed to be terminated, however, a new property
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manager, Monica Rico, sent Moisdon an email attaching a November rent invoice. Moisdon
responded that Dickerson told her the lease was terminated and asked her if she was supposed to
do anything further. Rico replied she believed Moisdon had done everything she was supposed to
do and she would let her know if that was not correct.
On November 20 and 21, Moisdon’s attorney and Rico exchanged emails in which the
attorney demanded Sky Interests turn over all Moisdon’s personal property that had not been sold.
Rico responded it was their position that Moisdon had already retrieved her personal belongings.
Rico requested a list of what property Moisdon believed was still on the premises that belonged to
her stating, “if we don’t know what she is expecting to pick up there is no reason for her to be there
and she will be turned away.” Moisdon then sent Rico an email stating she had not had access to
the restaurant since the lockout and she needed, among other things, her business paperwork for
her taxes and work-related obligations. Moisdon sent her a list of items still on the premises
including things such as letters from her deceased father, medical records, passports, and jewelry.
On November 26, Moisdon emailed Rico asking when she could pick up her things. Rico
responded that they couldn’t “have these things sitting in our hallway for very long.” She told
Moisdon to pick up her things that day or the following Monday. Moisdon testified that, when she
went to collect her belongings, they only gave her one box of papers. Although she said she could
see more of her property still inside the restaurant, they would not let her have any of it. After
going through the box, Moisdon emailed Rico again to say the box did not contain any of her
papers or personal items from her desk. She stated the desk “has all my important documents and
my customer receipts that I have to have for taxes and the only other place to retrieve that is on
my computers that you also kept.” Moisdon later learned that Sky Interests sold the remaining
items left on the premises, including kitchen equipment and furniture, to a restaurant supply
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company. Any of Moisdon’s property not sold was thrown in a dumpster obtained for the purpose
of renovating the premises for a new lessee.
Moisdon brought this suit alleging claims for wrongful lockout and removal of property
under section 93.002 of the Texas Property Code, conversion, theft, breach of contract, and civil
conspiracy.1 Sky Interests filed a counterclaim for breach of contract and moved for summary
judgment on its contract claim, seeking to recover lost rent, the cost of improvements to the
premises necessary to secure a replacement tenant, and attorney’s fees. The company additionally
moved for summary judgment on Moisdon’s claims. The trial court granted summary judgment
in favor of Sky Interests on its contract claim and awarded it $21,600 for lost rent, $34,606.01 in
re-leasing costs, and $12,637.50 in attorney’s fees for a total amount of $68,843.51. The trial court
also granted summary judgment in favor of Sky Interests on all Moisdon’s claims except for
conversion and violations of the Texas Property Code. These claims were tried to a jury.
Prior to trial, Sky Interests submitted proposed jury questions, including a question asking
if Moisdon had abandoned the personal property remaining in the leased premises under section
93.002 of the property code. The trial court ultimately refused to have the jury make a
determination on abandonment, concluding there was no evidence to raise a fact question on that
issue. The court’s charge included only three questions: the value of the property disposed of by
Sky Interests, whether Sky Interests converted Moisdon’s personal property on or after August 21,
2014, and what sum of money would compensate Moisdon for her damages resulting from the
conversion of her property. The valuation question presumed Sky Interests’s liability under the
property code.
1
In addition to naming Sky Interests as a defendant, Moisdon also named the company’s owner, Michael P.
Swiercinsky, and his children who worked for the company, Joshua and Nikki Swiercinsky. All claims made against
the Swiercinskys individually were resolved against Moisdon by summary judgment and she does not appeal that
ruling. Accordingly, we do not discuss the claims made against those parties.
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After hearing the evidence, the jury valued Moisdon’s property at $72,613.98. The jury
further found in favor of Moisdon on her conversion claim and concluded the amount of her
damages under that cause of action was $75,000. Moisdon elected to recover under her property
code cause of action which allowed her to additionally recover one month’s rent and attorney’s
fees.
The trial court’s final judgment awarded Sky Interests $68,843.51 pursuant to the earlier
partial summary judgment and $1,735.12 in postjudgment interest for a total amount of
$70,578.63. Moisdon was awarded the $72,613.98 valuation for her lost property plus $8,471.63
in prejudgment interest. Moisdon was also awarded the sum of $2,150 for one month’s rent
pursuant to section 93.002(g)(2) of the Texas Property Code and attorney’s fees of $16,000, for a
total amount of $99,235.61. This amount was offset by the amount awarded to Sky Interests,
leaving Moisdon a net recovery of $28,656.98.
Sky Interests filed a motion to modify the judgment asking the trial court to award it
equitable prejudgment interest on its breach of contract damages because the court had awarded
prejudgment interest to Moisdon. In addition, Sky Interests filed a motion for partial new trial
asserting several grounds, including the trial court’s failure to submit the requested jury question
on abandonment. The trial court denied both the motion to modify and the motion for partial new
trial. Moisdon did not file any postjudgment motions. Sky Interests filed this appeal of the trial
court’s final judgment and Moisdon filed a cross-appeal.
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Analysis
I. Prejudgment Interest
In its first issue, Sky Interests contends the trial court erred in denying its request to modify
the final judgment to award it prejudgment interest on its breach of contract damages. Under Texas
law, prejudgment interest is an additional damage award for the loss of use of money between the
time of accrual of the claim and the date of the judgment. Johnson & Higgins of Tex. v. Kenneco
Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). Prejudgment interest is awarded to fully
compensate the injured party, not punish the defendant. Brainard v. Trinity Universal Ins. Co.,
216 S.W.3d 809, 812 (Tex. 2006). There is no statute providing for an award of prejudgment
interest on a breach of contract claim, but such interest may be recovered under common law
principles of equity. See Jones v. R.O. Pomroy Equip. Rental, Inc., 438 S.W.3d 125, 132 (Tex.
App.—Eastland 2014, pet. denied). Where no statute controls, as here, the decision of whether to
award such interest is left to the sound discretion of the trial court, which should rely upon
equitable principles and public policy in making its decision. Henry v. Masson, 453 S.W.3d 43,
49 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Sky Interests does not challenge the award of prejudgment interest to Moisdon. The
company argues only that the trial court erred in not also awarding prejudgment on its recovery.
Sky Interests did not request prejudgment interest in its motion for summary judgment. The
request was made only after final judgment was rendered. In its motion to modify the judgment,
Sky Interests argued it would be inequitable to award Moisdon prejudgment interest while refusing
to grant Sky Interests the same relief.
As stated above, the purpose of prejudgment interest is to compensate the claimant for the
loss of use of money between the time of accrual of the claim and the date of the judgment.
Kenneco, 962 S.W.2d at 528. The jury in this case concluded that Sky Interests wrongfully
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exercised control over Moisdon’s personal property from the time the company’s breach of
contract claim accrued until the date of the judgment. The jury further concluded this property
had a value of $72,613.98, which was over $16,000 more than Sky Interests’s breach of contract
damages. Accordingly, although Sky Interests may have lost the use of the rental income, it
improperly maintained control over Moisdon’s property, which had greater value, over the same
time period. Moreover, the property Sky Interests refused to allow Moisdon to access was the
equipment she had been using to generate income to pay her rent. Based on the record before us,
we conclude the trial court did not abuse its discretion in refusing to award Sky Interests equitable
prejudgment interest. We resolve the company’s first issue against it.
II. Applicability of Section 93.002 of the Texas Property Code
In its second issue, Sky Interests contends the trial court erred in concluding section 93.002
of the Texas Property Code applied to Moisdon’s claims because the terms of the parties’ lease
superseded the statute. Section 93.002 addresses the interruption of utilities, removal of property,
and exclusion of a commercial tenant. TEX. PROP. CODE ANN. § 93.002. Under section 93.002(c),
a landlord may change the door locks of a tenant who is delinquent in paying rent. Id. § 93.002(c).
The landlord may not, however, remove any of the tenant’s property unless the tenant has
abandoned the premises. Id. § 93.002(e). Furthermore, even if the tenant has abandoned the
premises, the landlord must store the tenant’s property, and may not dispose of it, unless he delivers
by certified mail to the tenant’s last known address, a notice stating disposal of the property may
occur if the tenant does not claim the property within sixty days. Id. These statutory provisions
may be superseded by a lease to the extent the lease provisions conflict with the statute. Id. §
93.002(h).
Sky Interests contends section 93.002 does not apply in this case because the statute
conflicts with paragraphs 12 and 13 of the lease and, under section 93.002(h), the lease provisions
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control. Id. The construction of an unambiguous lease is a question of law determined de novo.
Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 787 (Tex. 2017); Saltworks
Ventures, Inc. v. Residences at Spoke, LLC, No. 03-16-00711-CV, 2018 WL 2248274, *7 (Tex.
App.—Austin May 17, 2018, no pet.)(mem. op.). In construing a contract, we may not rewrite or
add to its language. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003).
Statutory construction is also a question of law we review de novo. State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006).
Paragraph 12 of the lease states that, upon default by Moisdon, Sky Interests had the right
to terminate the lease and re-enter and repossess the premises and any improvements thereon. The
paragraph further states Moisdon will “indemnify and save harmless [Sky Interests] from any loss
arising from such default, termination and/or re-entry.” This provision does not address Moisdon’s
personal property or Sky Interests’s rights with respect to it. Moisdon’s claimed losses did not
arise out of her default, the termination of the lease, or the company’s re-entry of the premises. It
arose from the company’s sale and disposal of her personal property. Because paragraph 12 does
not mention personal property, let alone authorize Sky Interests to take any action with respect to
Moisdon’s personal property, we see nothing in the paragraph that conflicts with the requirements
of section 93.002.
In contrast, Paragraph 13 specifically addresses Sky Interests’s liability with respect to
Moisdon’s personal property. The paragraph states that Sky Interests is not liable for any losses
suffered to Moisdon’s property unless such losses were occasioned by Sky Interests’s gross
negligence or intentional acts. Sky Interests does not provide any argument to show how this
provision conflicts with section 93.002. Although Sky Interests contends there is no finding that
its sale and disposal of Moisdon’s property was intentional, the company neither requested such a
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finding nor cites any law that such a finding was required. Furthermore, the company does not
explain how its actions could have been anything other than intentional.
We conclude there is no conflict between the provisions section 93.002 and the terms of
the lease. We further conclude section 93.002 controls Moisdon’s claim for wrongful sale and
disposal of her property. We resolve Sky Interests second issue against it.
III. Jury Question
In its third issue, Sky Interests contends the trial court erred in refusing to submit its
requested jury question and instruction on abandonment. The trial court has a nondiscretionary
directive to submit requested questions to the jury if the pleadings and any evidence support them.
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit an issue,
however, if no evidence exists to warrant its submission. Id. Furthermore, under Texas Rule of
Civil Procedure 278, the failure to submit a question is not grounds for reversal unless the
complaining party submitted a proposed question in writing using substantially correct wording.
TEX. R. CIV. P. 278. A requested question or instruction that is affirmatively incorrect is not
“substantially correct” under the rule. See Placencio v. Allied Indus. Int’l, 724 S.W.2d 20, 21 (Tex.
1987).
In this case Sky Interests requested the submission of the following jury question: “After
August 21, 2014, did Plaintiff abandon the Property that remained on the Premises?” This question
was accompanied by an instruction that defined the circumstances under which an owner may be
deemed to have abandoned personal property. Sky Interests argues the issue of abandonment was
a threshold matter to be determined by the jury before liability could be imposed on it under section
93.002(e). The company contends, therefore, the trial court’s failure to submit the question is
reversible error. The company’s argument lacks merit for two reasons.
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First, the proposed question submitted by Sky Interests asked the jury to determine whether
Moisdon had abandoned her personal property. Under section 93.002(e), a landlord may remove
a tenant’s personal property only if the tenant has abandoned the premises. TEX. PROP. CODE ANN.
§ 93.002(e). A trial court’s refusal to submit an issue that is affirmatively incorrect in its wording
does not justify reversal. Id.; Baylor Univ. v. Coley, 221 S.W.3d 599, 607 (Tex. 2007) (Johnson,
J., concurring).
Second, there is no evidence in the record to show that Moisdon abandoned the premises.
The trial court did not err, therefore, in refusing to submit this issue to the jury. Elbaor, 845
S.W.2d at 243. Indeed, Sky Interests concedes there was no abandonment stating “it is undisputed
that Moisdon was locked out of the premises and did not abandon the premises.” Sky Interests
confusingly argues that, although it requested a question on abandonment, because the undisputed
evidence shows there was no abandonment, it cannot be held liable under section 93.002(e). Sky
Interests appears to argue that section 93.002(e) applies only to abandoned premises and, because
Moisdon did not abandon the premises, the section does not apply to the facts of this case. Sky
Interests misreads the statute.
Section 93.002(e) states that a landlord may remove and store the property of a tenant if
the property remains on premises the tenant has abandoned. TEX. PROP. CODE ANN. § 93.002(e).
The landlord may then dispose of the property after sixty days if the tenant has been properly
notified of the landlord’s intent to do so. Id. If a landlord violates the section, the tenant may
recover actual damages, one month’s rent or $500, whichever is greater, reasonable attorney’s fees,
and court costs, less any delinquent rent or other sums for which the tenant is liable. Id. §
93.002(g). Based on the clear language of the section, a landlord may remove a tenant’s property
from leased premises only if the premises have been abandoned. See Eun Bok Lee v. Ho Chang
Lee, 411 S.W.3d 95, 109–10 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Abandonment is not
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a prerequisite to application of the section; it is a prerequisite to the landlord’s ability to remove
the tenant’s personal property. A landlord’s removal of a tenant’s personal property from premises
that have not been abandoned is a violation of the section entitling the tenant to recover damages.
Because there was no evidence to suggest Moisdon had abandoned the premises, there was no fact
issue on abandonment for the jury to resolve, and Sky Interests was liable for violating section
93.002 by removing and disposing of Moisdon’s personal property. We resolve Sky Interests’s
third issue against it.
IV. Conversion Damages
In its fourth issue, Sky Interests contends the evidence is insufficient to support the jury’s
award of damages for conversion. Following the jury’s verdict, Moisdon elected to recover under
her property code claim rather than her conversion claim. Sky Interests does not assert any error
with respect to the damages awarded pursuant to the property code claim. Its arguments are
directed solely and specifically at the conversion award and, at the conclusion of the issue, the
company requests only that this Court “reverse the jury’s findings concerning conversion and
remand this case for a new trial on the conversion claim.” Because we have concluded Sky
Interests was properly held liable for violations of the Texas Property Code, and Moisdon elected
to recover under that theory alone, it is unnecessary for us to address Sky Interests’s challenge to
the conversion award. See TEX. R. APP. P. 47.1. (opinion must address issues “necessary to final
disposition of the appeal”).
V. Cross-Issues
In her first cross-issue, Moisdon contends the trial court’s judgment “should reflect only
the jury award.” Moisdon argues that, if this Court upholds her recovery under the Texas Property
Code, we should “also find the commercial lease was terminated by Moisdon at the time of Sky
Interests Corp.’s violation of the Texas Property Code and Sky Interests should take nothing on its
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counterclaim” for breach of contract. Although Moisdon is effectively challenging the partial
summary judgment rendered by the trial court, Moisdon cites no authority and makes no reference
to the summary judgment motions, arguments, evidence, or ruling. Indeed, Moisdon does not
specify what action the trial court took that she contends was erroneous. A party’s brief must
contain a clear and concise argument for the contention made, with appropriate citations to
authorities and the record, or the issue is waived on appeal. In re N.E.B. 251 S.W.3d 211, 212
(Tex. App.—Dallas 2008, no pet.).
In addition, although section 93.002 allows a tenant to terminate her lease when a landlord
violates a provision of the section, Moisdon points to no evidence that she actually did so. Moisdon
asks this Court to find she terminated the lease at the time of the violation, but termination of the
lease is not automatic under the statute. The language of the statute shows the contrary as it gives
the tenant the option to either recover possession of the premises or terminate the lease. TEX.
PROP. CODE ANN. § 93.002(g)(1). Whether termination occurred, therefore, is a question of fact.
This Court has no authority to make findings of fact. Bellefonte Underwriters Ins. Co. v. Brown,
704 S.W.2d 742, 745 (Tex. 1986). Findings of fact are the exclusive province of the jury and/or
trial court. Id. at 744
In the alternative, Moisdon asks us allow her to terminate the lease now and “foreclose
[Sky Interests’s] judgment for breach of contract.” She cites no authority for the proposition that
she may retroactively terminate her lease to defeat Sky Interests’s recovery. We resolve this issue
against Moisdon.
Moisdon’s second cross-issue addresses her conversion award and was brought
conditionally in the event this Court reversed her award under the property code. Because we have
upheld the property code award, it is unnecessary for us to address Moisdon’s second cross-issue.
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Based on the foregoing, we affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
180160F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SKY INTERESTS CORP., Appellant On Appeal from the 382nd Judicial District
Court, Rockwall County, Texas
No. 05-18-00160-CV V. Trial Court Cause No. 1-16-0782.
Opinion delivered by Justice Reichek.
ELLE MOISDON, Appellee Justices Schenck and Osborne participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered July 30, 2019.
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