Edom Corner, LLC and Earl Berry, Jr. v. It's the Berry's, LLC ( 2015 )

ACCEPTED
12-14-00365-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
5/20/2015 2:46:03 PM
CATHY LUSK
CLERK
NO. 12-14-00365-CV
IN THE COURT OF APPEALS FILED IN
12th COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS
AT TYLER 5/20/2015 2:46:03 PM
CATHY S. LUSK
Clerk
EDOM CORNER, LLC and
EARL A. BERRY, JR.,
Appellants
vs.
IT’S THE BERRY’S, LLC doing business as
MARY ELLEN’S
Appellee
On appeal from the 294th Judicial District Court of
Van Zandt County, Texas
BRIEF AND APPENDIX FOR APPELLEE
R. Paul Elliott Larry M. Lesh
R. PAUL ELLIOTT P.C. State Bar No. 12225000
Attorney at Law 1 Forest Park Drive
301 S. Main Richardson, Texas 75080
Canton, Texas 75103 (214) 237-8598
(903) 567-4141 (972) 699-1456 Facsimile
(903) 567-6228 Facsimile
ATTORNEY FOR APPELLEE ATTORNEY FOR APPELLEE
i
IDENTITIES OF PARTIES AND COUNSEL
APPELLEE:
It’s The Berry’s, LLC doing business as Mary Ellen’s (“Mary Ellen’s”)
COUNSEL FOR MARY ELLEN’S:
Larry M. Lesh
State Bar No. 12225000
LAW OFFICE OF LARRY M. LESH
1 Forest Park Drive
Richardson, Texas 75080
(214) 347-8598
(972) 699-1456 Facsimile
lmlesh@sbcglobal.net
R. Paul Elliott
R. PAUL ELLIOTT, P.C.
Attorney at Law
301 S. Main
Canton, Texas 75103
(903) 567-4141
(903) 567-62228 Facsimile
rpe@elilaw.com
APPELLANTS:
Edom Corner, LLC (“Edom Corner”) and Earl A. Berry, Jr. (“Berry”)
COUNSEL FOR EDOM CORNER AND BERRY:
ii
Richard L. Ray
Texas State Bar No. 16606300
RAY & THATCHER,
Attorneys at Law, P.C.
300 S. Trade Days Blvd.
Canton, Texas 75103
(903) 567-2051
(903) 567-6998 Facsimile
rlray@rayandthatcher.com.
Katherine A. Ferguson
RENSHAW DAVIS & FERGUSON, LLP
2900 Lee Street
P.O. Box 21
Greenville, Texas 75403-0021
(903) 454-6050
(903) 454-4898 Facsimile
rdflawoffice@yahoo.com
TRIAL COURT:
The 294th Judicial District Court of Van Zandt County, Texas (“the
District Court”), the Honorable Teresa Drum presiding
iii
TABLE OF CONTENTS
Identities of Parties and Counsel............................................................................ii
Table of Contents....................................................................................................iv
Index of Authorities.............................................................................................viii
Record References................................................................................................xiii
Statement of the Case...........................................................................................xiv
Statement Regarding Oral Argument..................................................................xv
Issues Presented In Reply...................................................................................xvi
A. Whether the District Court correctly concluded that Mary
Ellen’s, as the prevailing party in the Edom litigation, is entitled
to recover the attorney fees and court and other costs
incurred by Mary Ellen’s in the Edom litigation and this action
B. Whether the District Court correctly concluded that neither
res judicata nor collateral estoppel barred any or all of the
claims asserted by Mary Ellen’s in this action
C. Whether the District Court correctly concluded that Edom
Corner and Berry are jointly and severally liable to Mary
Ellen’s for the attorney fees and costs incurred by Mary
Ellen’s in the Edom litigation and this action
D. Whether the District Court correctly entered summary
judgment awarding Mary Ellen’s recovery from Edom
Corner and Berry, jointly and severally, the attorney fees and
costs incurred by Mary Ellen’s in the Edom litigation and
this action
iv
Statement of Facts...................................................................................................1
A. The parties; the lease..........................................................................1
B. The Edom litigation; the presentment..............................................2
C. The pleadings; the summary judgment motions
and evidence.........................................................................................8
D. The District Court’s conclusions.....................................................11
E. The interlocutory appeal..................................................................11
F. The final judgment............................................................................12
Summary of Argument..........................................................................................12
Argument................................................................................................................14
A. Standard of review............................................................................14
B. The District Court correctly concluded that Mary Ellen’s,
as the prevailing party in the Edom litigation, is entitled to
recover the attorney fees and court and other costs incurred
in the Edom litigation and this action...........................................14.
1. Mary Ellen’s prevailed on the collective claims of
Edom Corner and Berry in the Edom litigation.................15
2. Mary Ellen’s prevailed on the separate claims of
Edom Corner and Berry in the Edom litigation.................16
3. Mary Ellen’s is entitled to recover the attorney fees
and costs incurred in this action...........................................19
v
C. The District Court correctly concluded that neither res
judicata nor collateral estoppel barred any of the claims of
Mary Ellen’s in this action............................................................20
1. The Seventh Court of Appeals did not “affirm” any
denial of the claim of Mary Ellen’s for attorney fees
and costs................................................................................21
2. The counterclaim of Mary Ellen’ in the first forcible
detainer action did not confer subject matter
jurisdiction.............................................................................22
3. The second forcible detainer order and the third
forcible detainer judgment were not resurrected,
and denial of the Supreme Court mandamus had
no res judicata or collateral estoppel effect........................23
D. The District Court correctly concluded that Edom Corner
and Berry are jointly and severally liable to Mary Ellen’s
for the attorney fees and costs incurred by Mary Ellen’s
in the Edom litigation and this action...........................................24
E. The District Court correctly entered summary judgment
awarding Mary Ellen’s recovery from Edom Corner and
Berry the attorney fees and costs incurred by Mary Ellen’s
in the Edom litigation and in this action.......................................28
1. The recovery was sought and obtained under the
lease and Chapter 38.............................................................28
2. The District Court properly considered “pleadings and
affidavits previously filed but not attached”......................28
3. Edom Corner and Berry failed to rebut the statutory
presumption that the fees and costs, determined by the
District Court on judicial notice to be usual and
customary, were reasonable.................................................29
vi
CONCLUSION AND PRAYER.............................................................................32
CERTIFICATE OF COMPLIANCE....................................................................34
CERTIFICATE OF SERVICE..............................................................................34
APPENDIX A: The Lease...................................................................................35
vii
INDEX OF AUTHORITIES
Cases
Citizens for a Better Environment v. The Steel Co.,
230 F.3d 923 (7th Cir. 2000)...................................................................17
Collins v. Guinn, 102 S.W.3d 825
(Tex. App. Texarkana 2003 pet den).....................................................24
Cooper v. Cochran, 288 S.W.3d 522
(Tex. App. Dallas 2009 no pet)..............................................................21
Dann v. Municipal Water Authority,
2007 WL 2460058 (Tex. App. Tyler 207 no pet)..................................22
Dixie Dock Enterprises v. Overhead Door Corp.,
2002 WL 244324 (Tex. App. Dallas 2002 no pet)................................28
Dorrah-Kelly Mercantile o., v. Orient Ins. Co.,
135 S.W.1165 (Tex. 1911).....................................................................27
Edwards Aquifer Authority v. Horton, 2010 WL 374551
(Tex. App. San Antonio 2010 pet den)..................................................18
El Paso Independent School Dist., v. Berry,
2010 WL 4459735 (5th Cir. 2010)...........................................................17
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011)....................................................16
Flint & Assoc., v. Intercontinental Pipe & Steel, Inc.,
739 S.W.2d 622 (Tex. App. Dallas 1987 writ den)..................................30
Frost National Bank v. L & F Distributors, Ltd.,
122 S.W.3d 922 (Tex. App. Corpus Christi 2003)
r’vd other gds 165 S.W.3d 310 (Tex. 2005).............................................26
Gillam v. Sullivan, 352 S.W.2d 607
viii
(Tex. Civ. App. Fort Worth 1961 error rf’d n.r.e.)...................................28
Goldman v. Olmstead, 414 S.W.3d 346
(Tex. App. Dallas 2013 no pet).................................................................16
Grynberg v. Praxaire, Inc., 389 F.3d 1038
(10th Cir. 2004)............................................................................................17
Hartar v. Curry, 105 S.W. 988 (Tex. 1907)..........................................................23
Hartis v. Century Furniture Industries, Inc.,
230 S.W.3d 723 (Tex. App. Houston [14th Dist] 2007 no pet)...................31
Ingal v. Brightstar Information Technology Group,
250 S.W.3d 78 (Tex. 2008).........................................................................21
In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004)..................................................24
In re It’s The Berrys, LLC, 2006 WL 3020353
(Tex. App. Tyler 2006 orig. proceeding)......................................................6
In re Morley & Morley P.C., 2008 WL 5085131
(Tex. App. Houston [14th Dist] orig. proceeding).......................................20
In re Nalle Plastics Limited Partnership, 406 S.W.3d 138 (Tex. 2013)..........19-20
In re Rubiola, 334 S.W.3d 220 (Tex. 2011)..........................................................25
Insurance Co. of The State of Pennsylvania v. Orosco,
170 S.W.3d 129 (Tex. App. San Antonio 2005 no pet)..............................17
Intercontinental Group Partnership v. KB Lone Star LP,
293 S.W.3d 650 (Tex. 2009)...................................................................14-15
It’s The Berrys, LLC v. Edom Corner, LLC,
271 S.W.3d 765 (Tex. App. Amarillo 2008 no pet).........................5-6,21-22
ix
Laredo Independent School District v. Trevino,
25 S.W.3d 263 (Tex. App. San Antonio 2000 pet den)...............................31
Medicamp, Inc., v. Capital Cities Communications, Inc.,
698 S.W.2d 207 (Tex. App. Houston [1st Dist] no writ).........................24-25
Paez v. Trent Smith Custom Homes, 2014 WL 1089751
(Tex. App. San Antonio 2014 no pet)..........................................................31
Poole v. Goode, 442 S.W.2d 810
(Tex. Civ. App. Houston [14th Dist] 1969 error ref’d n.r.e.).......................23
Robbins v. Capozzi, 100 S.W.3d 18
(Tex. App. Tyler 2002 no pet)......................................................................16
Rodriguez v. Seider, 2005 WL 723682
(Tex. App. Austin 2005 no pet)....................................................................23
Sheikh v. Sheikh, 248 S.W.3d 381
(Tex. App. Houston [1st Dist] 2007 no pet)..................................................24
Somers v. Aranda, 322 S.W.3d 342
(Tex. App. El Paso 2010 no pet)..................................................................29
Sparkman v. Kimmey, 970 S.W.2d 654
(Tex. App. Tyler 1998 pet den)....................................................................29
State v. Morales, 869 S.W.2d 941 (Tex. 1994).......................................................22
Suttles v. Kastleman, 2002 WL 1729519
(Tex. App. Austin 2002 no pet)....................................................................29
Thedford Crossing, L.P., v. Tyler Rose Nursery, Inc.,
306 S.W.3d 860 (Tex. App. Tyler 2010 no pet)...........................................26
Twin City Fire Ins. Co., v. Vega-Garcia, 223 S.W.3d 762
(Tex. App. Dallas 2007 pet den)...................................................................23
x
Valerus Compression Services v. Gregg County Appraisal District,
S.W.3d , 2015 WL 82938 (Tex. App. Tyler 2015 no pet)............14
Van Nguen v. Bui, 2015 WL 1825658
(Tex. App. Austin 2015 no pet)....................................................................30
Vincent Murphy Chevrolet Co., v. Auto Auctions, Inc.,
413 S.W.2d 474 (Tex. Civ. App. Texarkana 1967 error rf’d n.r.e.).............25
Welch v. Hrabar, 110 S.W.3d 601
(Tex. App. Houston [14th Dist] 2003 pet den)...............................................21
Whitaker v. Huffaker, 790 S.W.2d 761
(Tex. App. El Paso 1990 writ den)...............................................................29
Yarbrough v. Household Finance Corp., 455 S.W.3d 277
(Tex. App. Houston [14th Dist] 2014 no pet).................................................19
Statutes and Rules
Texas Business Organizations Code
Section 101.254(a).........................................................................................25
Texas Civil Practices & Remedies Code
Chapter 38..............................................................................................Passim
Section 38.001........................................................................................Passim
Section 38.003.........................................................................................29-32
Section 38.004..........................................................................................28-31
Section 38.005...............................................................................................30
Section 51.014(d)...........................................................................................11
xi
RECORD REFERENCES
References in this brief designated “CR” are to the Clerk’s Record.
Those designated “Supp CR” are to the supplemental clerk’s record. Those
designated “Appellants’ App” are to the appendix to the brief (“appellants’ brief”)
filed in this appeal by Edom Corner and Berry. Those designated “Appellee’s App”
are to the appendix to this brief. Those designated “RR” are to the Reporter’s
Record.
xii
STATEMENT OF THE CASE
Edom Corner and Berry have perfected this appeal from the final summary
judgment (“the final judgment”) (CR Vol. 9 pp. 1619-1622, Appellants’ App B) by
which the District Court, after having determined the controlling issues of law,
taken judicial notice of the District Court’s files and usual and customary attorney
fees, and determined that Edom Corner and Berry failed to rebut the statutory
presumption that those usual and customary attorney fees were reasonable, entered
summary judgment awarding Mary Ellen’s, as the prevailing party, recovery from
Edom Corner and Berry, jointly and severally, the attorney fees and costs incurred
by Mary Ellen’s in prior litigation (“the Edom litigation”) and this action. The
awards were predicated on the provisions of a lease (“the lease”) and Chapter 38 of
the Texas Civil Practices & Remedies Code (“Chapter 38"). The Edom litigation
consisted of 13 separate proceedings, including three forcible detainer actions and
appeals; a mandamus proceeding seeking supersedeas determination; proceedings in
the District Court, the Court of Appeals, and the Texas Supreme Court by which
Edom Corner and Berry unsuccessfully sought disqualification of counsel for Mary
Ellen’s; two garnishment actions; and an injunction action.
xiii
STATEMENT REGARDING ORAL ARGUMENT
Mary Ellen’s does not believe that oral argument is warranted on this appeal.
However, if the Court grants oral argument on this appeal, Mary Ellen’s requests the
opportunity to participate.
xiv
ISSUES PRESENTED IN REPLY
FIRST ISSUE: WHETHER THE DISTRICT COURT CORRECTLY
CONCLUDED THAT MARY ELLEN’S, AS THE
PREVAILING PARTY IN THE EDOM LITIGATION, IS
ENTITLED TO RECOVER THE ATTORNEY FEES
AND COSTS INCURRED BY MARY ELLEN’S IN THE
EDOM LITIGATION AND THIS ACTION
SECOND ISSUE: WHETHER THE DISTRICT COURT CORRECTLY
CONCLUDED THAT NEITHER RES JUDICATA
NOR COLLATERAL ESTOPPEL BARRED MARY
ELLEN’S FROM ASSERTING ANY OR ALL OF THE
CLAIMS IN THIS ACTION
THIRD ISSUE: WHETHER THE DISTRICT COURT CORRECTLY
CONCLUDED THAT EDOM CORNER AND BERRY
ARE JOINTLY AND SEVERALLY LIABLE TO MARY
ELLEN’S FOR THE ATTORNEY FEES AND COSTS
INCURRED BY MARY ELLEN’S IN THE EDOM
LITIGATION AND THIS ACTION
FOURTH ISSUE: WHETHER THE DISTRICT COURT CORRECTLY
ENTERED SUMMARY JUDGMENT AWARDING
MARY ELLEN’S RECOVERY FROM EDOM CORNER
AND BERRY THE ATTORNEY FEES AND COSTS
INCURRED BY MARY ELLEN’S IN THE EDOM
LITIGATION AND THIS ACTION
xv
NO. 12-14-00365-CV
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
AT TYLER
EDOM CORNER, LLC, and EARL A. BERRY, JR.,
Appellants
vs.
IT’S THE BERRYS, LLC, doing business as
MARY ELLEN’S,
Appellee
BRIEF AND APPENDIX FOR APPELLEE
STATEMENT OF FACTS
A. The parties; the lease
Edom Corner was a limited liability company of which Berry, a
sophisticated attorney with expertise in real estate and finance, was a managing
member and the registered agent (CR 476, 478, 562). Mary Ellen’s was a limited
liability company of which Mary Ellen Malone (“Malone”), Berry’s sister, was the
managing member (CR 478 ). Berry, who authored the lease, controlled all matters
BRIEF AND APPENDIX FOR APPELLEE 1
pertaining to the lease and the Edom litigation (CR 539-540).
The lease (CR 134-140; Appellees’ App A), dated September 1, 2004, leased
to Mary Ellen’s, as tenant, premises (“the leased premises”) located in Edom, Van
Zandt County, Texas for a term which was to expire on August 31, 2007.
Executed by Berry and his wife as managing members of Edom Corner, the lease
(p.1) identified Edom Corner as “Landlord” and provided (p.2), under the heading
“Definitions”, that “‘Landlord’ means Landlord and its agents, employees,
invitees, licensees, or visitors.” Section E.14 of the lease provided, “Attorney’s
fees. If either party retains an attorney to enforce this Lease, the party prevailing in
litigation is entitled to recover reasonable attorney’s fees and court and other
costs.” Section E.16 of the lease provided, “Defaults by Landlord/Events. Defaults
by Landlord are failing to comply with any provision of this Lease within thirty
days after written notice and failing to provide Essential Services to Tenant after
ten days written notice.” Section E.7 of the lease provided, “Defaults by
Landlord/Tenant’s Remedies. Tenant’s remedies for Landlord’s default are to sue
for damages”.
B. The Edom litigation; the presentment
Beginning in April of 2006 Edom Corner, through its managing member
Berry, commenced, fomented and pursued the Edom litigation, the objectives of
BRIEF AND APPENDIX FOR APPELLEE 2
which were (1) to evict Mary Ellen’s from the leased premises, and (2) to recover
from Mary Ellen’s the attorney fees and court and other costs incurred by Edom
Corner and Berry in the Edom litigation. The Edom litigation (CR 143-144 )
consisted of the following:
Edom Corner, LLC, a Texas Limited Liability Company, vs. It’s The
Berrys, LLC, a Texas Limited Liability Company, doing business as
Mary Ellen’s, cause number E40196 in the Justice Court, Precinct 4,
Van Zandt County, Texas (“the first forcible detainer action”);
Edom Corner, LLC a Texas Limited Liability Company, vs. It’s The
Berrys, LLC, a Texas Limited Liability Company doing business as
Mary Ellen’s, cause number 06-00428 in the 294th Judicial District
Court of Van Zandt County, Texas (“the first forcible detainer action”);
In re It’s The Berrys, LLC doing business as Mary Ellen’s, Relator,
cause number 12-06-00298-CV in the Court of Appeals for the
Twelfth District of Texas at Tyler (“the Tyler mandamus”);
It’s The Berrys, LLC doing business as Mary Ellen’s, Appellant, vs.
Edom Corner, LLC, Appellee, cause number 12-06-00328-CV in
the Court of Appeals for the Twelfth District of Texas at Tyler (“the
first forcible detainer appeal”);
Edom Corner, LLC Plaintiff vs. Park Cities Bank, Garnishee, cause
number 06-00829in the 294th Judicial District Court of Van Zandt County,
Texas (“the Park Cities garnishment”);
Edom Corner, LLC, Plaintiff, vs. First State Bank of Ben Wheeler,
Garnishee, cause number 06-0830 in the 294th Judicial District Court
of Van Zandt County, Texas (“the Ben Wheeler garnishment”);
It’s The Berrys, LLC dooing business as Mary Ellen’s, Appellant vs.
Eom Corner, LLC, Appellee, cause number 07-06-00390-CV in the
Court of Appeals for the Seventh District of Texas at Amarillo (“the
BRIEF AND APPENDIX FOR APPELLEE 3
first forcible detainer appeal”);
Edom Corner, LLC, a Texas Limited Liability Company, Plaintiff,
vs. It’s The Berrys, LLC, a Texas Limited Liability Company doing
business as Mary Ellen’s, Defendant, cause number E40222 in the
Justice Court, Precinct 4, Place 1, Van Zandt County, Texas (“the second
forcible detainer action”);
Edom Corner, LLC, a Texas Limited Liability Company, Appellant,
vs. It’s The Berrys, LLC, a Texas Limited Liability Company doing
business as Mary Ellen’s, Appellee, cause number 07-00187 in
the 294th Judicial District Court of Van Zandt County, Texas
(“the second forcible detainer appeal”);
In re Edom Corner, LLC, Relator, cause number 07-00537 in the
Texas Supreme Court (“the Supreme Court mandamus”);
It’s The Berrys, LLC doing business as Mary Ellen’s, Plaintiff vs.
Edom Corner, LLC, Defendant, cause number 07-00341 in the 294th
Judicial District Court of Van Zandt County, Texas (“the injunction
action”)
Edom Corner, LLC, a Texas Limited Liability Company, Plaintiff, vs.
It’s The Berrys, LLC, a Texas Limited Liability Company doing
business as Mary Ellen’s, Defendant, cause number E40233 in the
Justice Court, Precinct 4, Place 1, Van Zandt County, Texas (“the
third forcible detainer action”); and
Edom Corner, LLC, a Texas Limited Liability Company, Appellant, vs.
It’s The Berrys, LLC, a Texas Limited Liability Company doing business
as Mary Ellen’s, Appellee, cause number CV04237 in the County Court,
Van Zandt County, Texas (“the third forcible detainer appeal”).
Edom Corner moved for and obtained transfer of the first forcible detainer
action from the Justice Court to the District Court (CR 444). The first forcible
detainer appeal was an appeal by Mary Ellen’s from the District Court’s judgment
BRIEF AND APPENDIX FOR APPELLEE 4
(“the first forcible detainer judgment”) (CR 361-362) in the first forcible detainer
action, which had decreed eviction of Mary Ellen’s from the leased premises and
awarded Edom Corner recovery of attorney fees and costs in the aggregate amount
of $92,583.83, based upon hourly rates charged by the attorneys for Edom Corner
and Berry which exceeded by $75.00 per hour the rates charged by the attorneys for
Mary Ellen’s in the Edom litigation (CR 1273, 1442). After the first forcible
detainer appeal was transferred from this Court to the Court of Appeals for the
Seventh District of Texas (“the Seventh Court of Appeals”) pursuant to the docket
equalization statute, the Seventh Court of Appeals reversed the first forcible
detainer judgment and dismissed the first forcible detainer action, It’s the Berrys,
LLC vs. Edom Corner, LLC, 271 S.W.3d 765 (Tex. App. Amarillo 2008 no pet),
holding that the District Court lacked subject matter jurisdiction of the first forcible
detainer action,. Addressing the counterclaim filed by Mary Ellen’s in the first
forcible detainer action for declaratory relief and attorney fees, the Seventh Court of
Appeals reasoned that because the District Court “lacked subject matter jurisdiction
to adjudicate [the first forcible detainer action], that cause, including the award of
statutory and contractual attorney’s fees and costs to Edom Corner, must be set
aside and dismissed”, and that “In the same way, [the District Court] had no
jurisdiction to award attorney’s fees to [Mary Ellen’s]”, 271 S.W.3d at 772.
BRIEF AND APPENDIX FOR APPELLEE 5
The Tyler mandamus was a proceeding in which Mary Ellen’s obtained from
this Court an order (“this Court’s mandamus order”), despite vigorous resistance by
Edom Corner and Berry, directing the District Court to determine the amount
required to supersede and suspend enforcement of the entirety of the first forcible
detainer judgment pending the first forcible detainer appeal, In re It’s The Berrys,
LLC, 2006 WL 3020353 (Tex. App. Tyler 2006 orig. proceeding). The District
Court complied with this Court’s mandamus order by determining the requisite
amount of security (far less than the exorbitant amount sought by Edom Corner and
Berry) and Mary Ellen’s superseded the entirety of the first forcible detainer
judgment, which was reversed on appeal (CR 442-452).
The Park Cities garnishment and the Ben Wheeler garnishment were attempts
by Edom Corner and Berry to garnish the bank account of Mary Ellen’s and the
personal bank account of Malone (CR 457-464, 468-475). The District Court
dissolved both garnishments (CR 454-456, 475-476).
The second forcible detainer appeal was an appeal by Edom Corner from the
Order of Abate and Dismiss (“the second forcible detainer order”) entered in the
second forcible detainer action (CR 379), which was another attempt by Edom
Corner and Berry to evict Mary Ellen’s from the leased premises and recover
attorney fees from Mary Ellen’s.
BRIEF AND APPENDIX FOR APPELLEE 6
After Edom Corner and Berry unsuccessfully sought from the District Court
(CR 476-477) and the Seventh Court of Appeals (CR 478-485) orders disqualifying
counsel for Mary Ellen’s, Edom Corner and Berry commenced the Supreme Court
mandamus, seeking, inter alia, an order from the Texas Supreme Court directing
the Seventh Court of Appeals to disqualify counsel for Mary Ellen’s (CR 481-482).
The Texas Supreme Court denied the Supreme Court mandamus (CR483-484).
The injunction action was an attempt by Mary Ellen’s to enjoin Edom Corner
and Berry from implementing a threatened forcible removal of Mary Ellen’s from
the leased premises (CR 310-316). The District Court, finding credible Berry’s
representation of an intent to attempt removal of Mary Ellen’s from the leased
premises only by lawful judicial process, declined to enter a temporary injunction
(CR 317).
The third forcible detainer appeal was the appeal by Edom Corner from the
judgment (“the third forcible detainer judgment”) denying the third attempt by
Edom Corner and Berry, in the third forcible detainer action, to evict Mary Ellen’s
from the leased premises and recover attorney fees from Mary Ellen’s (CR 322).
Despite the Edom litigation, Edom Corner and Berry never evicted Mary
Ellen’s from the leased premises and never recovered attorney fees or costs from
Mary Ellen’s. After the lease expired, Mary Ellen’s voluntarily vacated the leased
BRIEF AND APPENDIX FOR APPELLEE 7
premises (CR 132); Edom Corner, Berry and Mary Ellen’s then nonsuited all claims
in the second forcible detainer appeal, the injunction action, and the third forcible
detainer appeal (CR 487-502); and, in the first forcible detainer appeal, the Seventh
Court of Appeals’ reversal of the first forcible detainer judgment and dismissal of
the first forcible detainer action were issued and became final (CR 437, 453).
By letter to counsel for Edom Corner and Berry dated January 1, 2009 (“the
presentment”) counsel for Mary Ellen’s stated that as prevailing party in the Edom
litigation Mary Ellen’s was entitled under section E.14 of the lease to recover the
attorney fees and court and other costs incurred by Mary Ellen’s in the Edom
litigation and demanded payment of those amounts within 60 days (CR 150-152).
C. The pleadings; the summary judgment motions and evidence
Mary Ellen’s alleged in this action that a cause of action against Edom
Corner and Berry for breach of contract arose out of the failure to pay the amounts
demanded in the presentment, entitling Mary Ellen’s, under sections E.14, E.16 and
E.7 of the lease and Chapter 38 of the Texas Civil Practices & Remedies Code
(“Chapter 38"), to recover from Edom Corner and Berry, jointly and severally, the
attorney fees and costs incurred by Mary Ellen’s in the Edom litigation and in this
action (CR 568-582 ). Edom Corner and Berry denied those allegations, alleged
the affirmative defense that res judicata and collateral estoppel barred the claims of
BRIEF AND APPENDIX FOR APPELLEE 8
Mary Ellen’s, and sought recovery from Mary Ellen’s of the attorney fees and costs
incurred by Edom Corner and Berry in this action (CR 210-217 ).
Mary Ellen’s filed an original and three amended motions for summary
judgment; the original and amended affidavits of Malone; and the original,
amended and supplemented affidavits of the attorneys for Mary Ellen’s. The
amended affidavit of Malone showed that despite the Edom litigation Mary Ellen’s
was never evicted from the leased premises but instead voluntarily vacated the
leased premises upon expiration of the lease, and that Mary Ellen’s was never held
liable for any attorney fees or costs incurred by Edom Corner or Berry (CR 131-
140). The amended and supplemental affidavits of counsel for Mary Ellen’s (a)
were accompanied by statements for services rendered in the Edom litigation and in
this action, and documentary evidence of the litigation; and (b) expressed the
expert opinions based upon their personal knowledge, education and experience,
that the attorney fees and costs sought in this action were usual, customary,
reasonable and necessary (CR 141-203, 433-502, 514,565, 1065-1075). The third
amended motion for summary judgment filed by Mary Ellen’s (CR 1435-1455) (a)
cited the supporting affidavits of Malone and counsel for Mary Ellen’s; (b) cited
the District Court’s statutory authority under Chapter 38 to “take judicial notice of
the usual and customary attorney’s fees and the contents of the case file without
BRIEF AND APPENDIX FOR APPELLEE 9
receiving further evidence” and the presumption under Chapter 38 that the “usual
and customary attorney’s fees are ... reasonable”; and (c) sought summary judgment
awarding Mary Ellen’s recovery from Edom Corner and Berry, jointly and
severally, attorney fees and costs aggregating $135,283.42 for services rendered in
the Edom litigation and $60,000.00 for services rendered and to be rendered in
prosecuting this action.
Edom Corner and Berry moved for summary judgment “against Plaintiff”
and “for attorney’s fees as prayed for and proved...” (CR 259-425 ) . Based upon
hourly rates which exceeded by $25.00 per hour the rates charged by the attorneys
for Mary Ellen’s, Edom Corner and Berry claimed entitlement to recovery from
Mary Ellen’s of attorney fees and costs aggregating $112,500 for defending this
action through final judgment (CR 268-275,1276 ). In addition, Edom Corner and
Berry filed an affidavit (“the controverting affidavit”) (CR 1137-1267 ) purporting
to controvert the motions for summary judgment of Mary Ellen’s based upon
“billing procedures” and “items of concern” in the billing statements of counsel for
Mary Ellen’s (CR1140-1143). The controverting affidavit did not, however,
challenge the assertions in the affidavits of counsel for Mary Ellen’s that the
amounts of the fees and costs sought were usual, customary and reasonable.
D. The District Court’s conclusions
BRIEF AND APPENDIX FOR APPELLEE 10
Edom Corner, Berry and Mary Ellen’s jointly moved (“the joint motion”)
(CR 1050-1056) pursuant to Texas Civil Practices & Remedies Code Section
51.014(d) for an order determining the controlling issues of law in this action and
permitting an interlocutory appeal. By order (“the order on joint motion”) (CR
1428-1431; Appellants’ App A) signed May 7, 2014 the District Court (1)
determining the controlling issues of law, concluded that (a) Mary Ellen’s was the
prevailing party in the Edom litigation, (b) as the prevailing party Mary Ellen’s was
entitled to recover the attorney fees and costs incurred in the Edom litigation and
this action, (c) Edom Corner and Berry were jointly and seveerally liable to Mary
Ellen’s for those attorney fees and costs, (d) neither res judicata nor collateral
estoppel barred the claims of Mary Ellen’s in this action, and (e) Edom Corner and
Berry were not entitled to recover attorney fees or costs in this action; and (2)
granted permission for an interlocutory appeal.
E. The interlocutory appeal
Edom Corner and Berry filed an interlocutory appeal (“the interlocutory
appeal”) (CR 1431-1435) from the order on joint motion; the interlocutory appeal
was docketed in this Court under Cause number 12-14-00131-CV. By opinion and
judgment dated June 14, 2014, this Court denied permission for the interlocutory
appeal (CR 1456-1459). After granting the motion for rehearing filed by Edom
BRIEF AND APPENDIX FOR APPELLEE 11
Corner and Berry, this Court by opinion and judgment dated January 21, 2015
dismissed the interlocutory appeal as moot based upon the District Court’s entry of
the final judgment (CR 1400-1401).
F. The final judgment
The final judgment (CR 1619-1622; Appellants’ App B) (1) recited the
District Court’s conclusions that, inter alia, Edom Corner and Berry were jointly
and severally liable for the attorney fees and costs incurred by Mary Ellen’s in the
Edom litigation and in this action; (2) recited that the District Court exercised the
statutory authority to take judicial notice of the Court’s file and that the amounts of
attorney fees and costs awarded were usual and customary; (3) recited the District
Court’s determination that Edom Corner and Berry failed to rebut the statutory
presumption that those usual and customary attorney fees and costs were
reasonable; and (4) awarded Mary Ellen’s recovery from Edom Corner and Berry,
jointly and severally, $135,283.42 representing the attorney fee and costs incurred
by Mary Ellen’s in the Edom litigation, and $60,000.00 representing the attorney
fees and costs incurred and to be incurred in this action.
SUMMARY OF ARGUMENT
Both collectively and separately, Mary Ellen’s was the prevailing party in the
Edom litigation. Collectively, Edom Corner and Berry achieved neither of the two
BRIEF AND APPENDIX FOR APPELLEE 12
objectives for which they pursued the Edom litigation. Thus, Mary Ellen’s
successfully defended the collective claims of Edom Corner and Berry, and
therefore prevailed in the Edom litigation. Separately, Edom Corner and Berry
nonsuited the second forcible detainer appeal and the third forcible detainer appeal
to avoid inevitable adverse judgments; those nonsuits, together with the Seventh
Court of Appeals’ dismissal of the first forcible detainer action, foreclosed any
further forcible detainer cause of action against Mary Ellen’s to enforce the lease.
Thus, Mary Ellen’s successfully defended the separate claims of Edom Corner and
Berry, and therefore prevailed in the Edom litigation. Moreover, Mary Ellen’s
recovered damages on a valid claim in the Edom litigation, entitling Mary Ellen’s to
recover the attorney fees and costs incurred in this action.
Accordingly, under the lease and Chapter 38, Mary Ellen’s is entitled to
recover the attorney fees and costs incurred in the Edom litigation and this action.
Moreover, both Edom Corner and Berry were within the lease’s broad definition of
“Landlord” and are therefore jointly and severally liable to Mary Ellen’s for those
fees and costs. No final judgment on the merits by a court with competent
jurisdiction barred, by res judicata or collateral estoppel, recovery by Mary Ellen’s
of those fees and costs. Finally, the District Court properly took judicial notice of
the usual and customary amounts of those fees and costs, and correctly determined
BRIEF AND APPENDIX FOR APPELLEE 13
that Edom Corner and Berry failed to rebut the statutory presumption that the
amounts of those usual and customary fees and costs were reasonable. Mary
Ellen’s submits, therefore that the final judgment should be affirmed.
ARGUMENT
A. Standard of Review
This Court reviews “summary judgment de dovo”, Valerus Compression
Services v. Gregg County Appraisal District S.W.3d , 2015 WL 82938 at
*2 (Tex. App. Tyler 2015 no pet).
B. The District Court correctly concluded that Mary Ellen’s, as the
prevailing party in the Edom litigation, is entitled to recover the fees and
costs incurred in the Edom litigaton and this action
Texas courts apply the American rule, under which “litigants’ attorney’s fees
are recoverable only if authorized by statute or contract between the parties,”
Intercontinental Group Partnership v. KB Lone Star LP, 295 S.W.3d 650, 653 (Tex.
2009). Chapter 38 at Texas Civil Practices Code Section 38.001 (“Section 38.001"),
the applicable Texas statute, provides for recovery of “reasonable attorney’s fees ...
in addition to the amount of the amount of a valid claim and costs ... for ... an oral or
written contract.” In addition, “Parties are free to contract for a a fee–recovery
standard either broader or stricter than” Chapter 38, Intercontinental, 295 S.W.3d at
653. The parties to this action did so by agreeing in section E.14 of the lease that if
BRIEF AND APPENDIX FOR APPELLEE 14
“either party retains an attorney to enforce this Lease, the party prevailing in
litigation is entitled to recover reasonable attorney’s fees and court and other costs.”
In this action the District Court concluded that Mary Ellen’s, as the prevailing party,
is entitled to recover the attorney fees and costs incurred in the Edom litigation and
this action under the lease and Chapter 38. As shown below, those conclusions were
eminently correct.
1. Mary Ellen’s prevailed on the collective claims of Edom Corner
and Berry in the Edom litigation
Unquestionably, Edom Corner and Berry retained attorneys to enforce the
lease. Through their attorneys, they commenced, fomented and pursued the lengthy
and protracted Edom litigation with the objectives of evicting Mary Ellen’s from the
leased premises and recovering attorney fees and costs from Mary Ellen’s, based
upon claimed violations of the lease by Mary Ellen’s. However, after the litigation
culminated, Edom Corner and Berry failed to achieve either objective; Mary Ellen’s
was neither evicted from the leased premises nor held liable to Edom Corner or
Berry for any attorney fees or costs. Accordingly, “[Mary Ellen’s] was the
‘prevailing party’ because [Mary Ellen’s] successfully defended all of [Edom
Corner’s and Berry’s] claims. Thus, [Mary Ellen’s] is entitled to recover [its] costs
and attorney’s fees ..”, Robbins v. Capozzi, 100 S.W.3d 18, 27 (Tex. App. Tyler
2002 no pet); see also Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.
BRIEF AND APPENDIX FOR APPELLEE 15
Dallas 2013 no pet) (“A prevailing party is the party who successfully prosecutes a
cause of action or defends against it ... [Mary Ellen’s] successfully defended [Edom
Corner’s and Berry’s] claims and, therefore, [is prevailing party] under the
contract”).
2. Mary Ellen’s prevailed on the separate claims of Edom Corner
and Berry in the Edom litigation
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) involved a contract which
provided that “the prevailing party to any legal proceeding related to this contract is
entitled to recover reasonable attorney’s fees and all costs of such proceeding
incurred by the prevailing party.” After finding “federal cases focusing on the
meaning of prevailing party instructive”, 351 S.W.3d 866-868, the Texas Supreme
Court adopted the principle enunciated by federal courts that a defendant is the
prevailing party when the plaintiff nonsuits “to avoid an unfavorable ruling on the
merits,” id., at 870.
Federal courts focusing on the definition of prevailing party, which the Texas
Supreme Court in Epps found “instructive”, also hold that when a dismissal for want
of jurisdiction forecloses the plaintiff’s claim because the cause of action no longer
exists, the “‘defendant is the prevailing party’”, El Paso Independent School District
v. Berry, 410 Fed. Appx. 947, 2010 WL 4459735 at n.10 (5th Cir. 2010).
Citing Citizens for a Better Environment v. The Steel Co., 230 F.3d 923 (7th
BRIEF AND APPENDIX FOR APPELLEE 16
Cir. 2000) and Grynberg v. Praxair, Inc., 389 F.3d 1038 (10th Cir. 2004) the brief
(“appellants’ brief”) filed in this appeal by Edom Corner and Berry argues (pp. 19-
20) that because the Seventh Court of Appeals’ dismissal of the first forcible
detainer action “did not foreclose another suit ... [Mary Ellen’s] was not the
prevailing paty.” Both decisions cited for that argument, however, held that if a
dismissal for want of jurisdiction forecloses further action because the cause of
action no longer exists, the defendant is the prevailing party, Citizens, 230 F.3d at
929-930 (“ ... success on a fundamental jurisdictional point can make a litigant a
‘prevailing party’ ... When a dismissal for want of jurisdiction forecloses the
plaintiff’s claim, the defendant is the ‘prevailing party’”); Grynberg, 389 F.3d at
1057-58 (Because the cause of action no longer existed after a dismissal for want of
jurisdiction, “Grynberg is now prohibited from bringing further claims on these
facts, Praxair is a prevailing party”). Indeed, Texas courts have consistently held
that a defendant who seeks and obtains dismissal of the action is the prevailing party.
In Insurance Co., of the State of Pennsylvania v. Orosco, 170 S.W.3d 129 (Tex.
App. San Antonio 2005 no pet), relied on in appellants’ brief (pp. 18-19) the court
held, “Here, Orosco sought and obtained dismissal of appellant’s claim against him.
Therefore, he ‘prevailed’” 170 S.W.3d at 134; see also Edwards Aquifer Authority v.
Horton, 2010 WL 374551 at *2 (Tex. App. San Antonio 2010 pet den) (“Here EAA
BRIEF AND APPENDIX FOR APPELLEE 17
sought and obtained dismissal of Horton and Del Papa’s claims against it.
Therefore, EAA prevailed, and was entitled to recover attorney’s fees”).
In this action Edom Corner and Berry launched and pursued their crusade
against Mary Ellen’s by commencing the first forcible detainer action, the second
forcible detainer action and the third forcible detainer action. They perfected the
second forcible detainer appeal and the third forcible detainer appeal from the
Justice Courts’ adverse determinations. Their litigation tactics included vigorously
and unsuccessfully resisting efforts by Mary Ellen’s to supersede the entirety of the
first forcible detainer judgment pending the first forcible detainer appeal;
unsuccessfully attempting, before the ink was dry on this Court’s mandamus order,
to garnish not only the bank account of Mary Ellen’s but also the personal bank
account of Malone (contrary to appellants’ brief (pp. 20-21), those attempted
garnishments did not “force” Mary Ellen’s to supersede the first forcible detainer
judgment); and repeatedly and unsuccessfully attempting to obtain from the District
Court, the Seventh Court of Appeals and the Texas Supreme Court orders
disqualifying the attorneys for Mary Ellen’s. They fomented the injunction action
by threatening forcible removal of Mary Ellen’s from the leased premises. During
the pendency of those proceedings, the lease expired and Mary Ellen’s vacated the
leased premises, thereby nullifying any forcible detainer cause of action against
BRIEF AND APPENDIX FOR APPELLEE 18
Mary Ellen’s under the lease, Yarbrough v. Household Finance Corp., 455 S.W.3d
277, 280 (Tex. App. Houston [14th Dist] 2015 no pet) (“A forcible detainer action
requires proof of a landlord-tenant relationship”). Edom Corner and Berry then
nonsuited the second forcible detainer appeal and the third forcible detainer appeal,
thus avoiding the inevitable adverse determinations of those appeals. The Seventh
Court of Appeals’ reversal of the first forcible detainer judgment and dismissal of
the first forcible detainer action were subsequently issued and became final, which
likewise foreclosed any further forcible detainer cause action against Mary Ellen’s to
enforce the lease. Thus, the state and federal authorities discussed above are
entirely consistent with, and fully support, the District Court’s conclusion that Mary
Ellen’s, as the prevailing party, is entitled to recover the attorney fees and costs
incurred in the Edom litigation.
3. Mary Ellen’s is entitled to recover the attorney fees and costs
incurred in this action
Citing In re Nalle Plastics Family Limited Partnership, 406 S.W.3d 168 (Tex.
2013), appellants’ brief (pp. 34-35) argues that Section 38.001 does not entitle Mary
Ellen’s to recover the attorney fees and costs incurred in this action because Section
38.001 requires recovery of “damages” and the “only ‘damages’ sought by [Mary
Ellen’s] ... are the attorney’s fees incurred in [the Edom litigation]” which “are not
damages as construed in” Section 38.001. However, the Texas Supreme Court in
BRIEF AND APPENDIX FOR APPELLEE 19
Nalle Plastics explicitly held that where, as in this action, the underlying “suit
concerns a claim for attorney’s fees as an element of damages, ... then those fees
may properly be included in a judge’s or jury’s compensatory damages award”, 406
S.W.3d at 175. Consequently, recovery by Mary Ellen’s of the attorney fees and
costs incurred in the Edom litigation constituted recovery of damages on a valid
claim, entitling Mary Ellen’s under Section 38.001 to recover, in addition to those
damages, the attorney fees and costs incurred in prosecuting this action; the District
Court correctly so concluded.
C. The District Court correctly concluded that neither res judicata nor
collateral estoppel barred the claims of Mary Ellen’s in this action
“Res judicata presumes that the prior judgment was rendered by a court of
competent jurisdiction ... Thus, res judicata does not bar the subsequent litigation of
a counterclaim over which the prior court lacked jurisdiction ... Similarly, collateral
estoppel does not apply if the previous trial court lacks the jurisdiction to make a full
and final adjudication of the defendant’s counterclaim,” In re Morley & Morley,
P.C., 2008 WL 5085131 at *2 (Tex. App. Houston [14th Dist] 2008 orig.
proceeding); as the Texas Supreme Court held in Ingal v/ Brightstar Information
Technology Group, 250 S.W.3d 78, 82 (Tex. 2008) cited in appellants’ brief (pp. 24,
26), “Res judicata does not apply when the initial tribunal lacks subject matter
jurisdiction”. Moreover, “Where a party takes a voluntary nonsuit of its claims, res
BRIEF AND APPENDIX FOR APPELLEE 20
judicata does not attach”, Cooper v, Cochran, 288 S.W.3d 522, 538 (Tex. App.
Dallas 2009 no pet); see also Welch v. Hrabar, 110 S.W.3d 601, 608 (Tex. App.
Houston [14th Dist] 2003 pet den) (“ ... if the plaintiff takes a voluntary nonsuit, res
judicata does not impede subsequent actions”). As shown below, the District Court
correctly applied those principles and concluded that neither res judicata nor
collateral estoppel barred the claims of Edom Corner in this action.
1. The Seventh Court of Appeals did not “affirm” any denial of the
claim of Mary Ellen’s for attorney fees and costs
Appellants’ brief (pp. 18-19) argues that because the Seventh Court of
Appeals overruled the appellate issue advanced by Mary Ellen’s “as to its claim for
attorney’s fees,” the District Court’s “denial of an award of attorneys’ fees to [Mary
Ellen’s] in [the first forcible detainer action] was a final order” barring the claims by
Mary Ellen’s in this action. However, the Seventh Court of Appeals did not
overrule that issue on the merits; the Seventh Court of Appeals overruled the issue
based upon the Seventh Court of Appeals’ determination that the District Court
lacked subject matter jurisdiction either to award “statutory and contractual
attorney’s fees to Edom Corner” or to “award attorney’s fees to [Mary Ellen’s]” 271
S.W.3d at 772. Thus, the authorities cited above demonstrate that, as the District
Court correctly concluded, no aspect of either the first forcible detainer judgment, or
the Seventh Court of Appeals’ determination of the first forcible detainer appeal, in
BRIEF AND APPENDIX FOR APPELLEE 21
any respect barred the claims of Mary Ellen’s in this action.
2. The counterclaim of Mary Ellen’s in the first forcible detainer
action did not confer subject matter jurisdiction
Appellants’ brief (pp. 24-26) argues that Mary Ellen’s “deliberately ignored
that its” counterclaim for declaratory relief in the first forcible detainer action was
“subject to the jurisdiction of” the District Court, and the District Court’s “denial” of
that counterclaim was “affirmed by the appellate court”, barring Mary Ellen’s “by
res judicata from making the same claim in this suit.” The principal flaw in those
arguments is that a “litigant’s request for declaratory relief cannot confer subject
matter jurisdiction on the court, nor can it change the basic character of the suit,”
State v. Morales, 869 S.W.2d 941,947 (Tex. 1994); see also Dann v. Municipal
Water Authority, 2007 WL 2460058 at *5 (Tex. App. Tyler 2007 no pet) (“A request
for declaratory relief does not change the basic character of the suit or confer
jurisdiction on a court”). Accordingly, the Seventh Court of Appeals aptly and
conclusively held that the District Court in the first forcible detainer action lacked
jurisdiction to adjudicate the counterclaim of Mary Ellen’s; thus no aspect of the first
forcible detainer judgment barred this action.
3. The second forcible detainer order and the third forcible detainer
judgment were not resurrected and denial of the Supreme Court
mandamus had no res judicata or collateral estoppel effect
BRIEF AND APPENDIX FOR APPELLEE 22
Citing Twin City Fire Ins. Co., v. Vega-Garcia, 223 SW.3d 762 (Tex. App.
Dallas 2007 pet den) appellants’ brief (pp. 21-22) argues that the nonsuits by Edom
Corner and Berry of the second forcible detainer appeal and the third forcible
detainer appeal resurrected the second forcible detainer order and the third forcible
detainer judgment, neither of which awarded attorney fees to Mary Ellen’s; thus,
according to appellants’ brief, res judicata barred the claims of Mary Ellen’s in this
action for attorney fees and costs incurred in the second forcible detainer action and
the third forcible detainer action. However, unlike the workers’ compensation
award involved in Twin City, dismissal of an appeal from a justice court judgment
“does not result in the reinstatement of the justice court’s judgment,” and has “no
effect on ... ability to again file suit regarding the matter,” Rodriguez v. Seider, 2005
WL 723682 at *3 n.2 (Tex. App. Austin 2005 no pet); see also Poole v. Goode, 442
S.W.2d 810, 813 (Tex. Civ. App. Houston [14th Dist] 1969 error ref’d n.r.e.) (“‘The
judgment of the justice court was vacated by the appeal, and the voluntary dismissal
of the case did not restore the vacated judgment, but put all parties out of court”’
quoting Harter v. Curry, 105 S.W. 988, 989 (Tex. 1907). Moreover, the denial of
the Supreme Court mandamus had no res judicata or collateral estoppel effect: “...the
failure to grant mandamus relief ‘is not an adjudication of, nor even a comment on,
the merits of a case in any respect, including whether mandamus relief was
BRIEF AND APPENDIX FOR APPELLEE 23
available,’” Sheikh v. Sheikh, 248 S.W.3d 381, 394 n. 7 (Tex. App. Houston [1st
Dist] 2007 no pet quoting In re AIU Ins. Co., 148 S.W.3d 109, 119 (Tex. 2004)).
Thus, the second forcible detainer order, the third forcible detainer judgment and the
denial of the Texas Supreme Court mandamus could not bar any of the claims of
Mary Ellen’s in this action; the District Court correctly so concluded.
D. The District Court correctly concluded that Edom Corner and Berry
are jointly and severally liable for the attorney fees and costs incurred
by Mary Ellen’s in the Edom litigation and this action
“Generally, agents are not liable for claims or debts incurred by a disclosed
principal. ... If, however, the agent explicitly or implicitly obligates himself or
herself to the contract, then the agent may be held liable for a debt undertaken on a
principal’s behalf,” Collins v. Guinn, 102 S.W.3d 825, 835 (Tex. App. Texarkana
2003 pet den) “When an agent contracts for a disclosed principal the agent generally
is not liable on the contracts he makes. ... However, an agent of a known principal
may be personally liable if the agent ... has pledged his own responsibility in
addition to that of the principal ... This liability can be by express agreement, or in
the absence of express agreement, by circumstances showing that he has either
expressly or impliedly assumed such liability,” Medicamp, Inc, v. Capital Cities
Communications, Inc., 698 S.W.2d 207, 211 (Tex. App. Houston [1st Dist] 1985 no
writ); see also Vincent Murphy Chevrolet Co., v. Auto Auctions, Inc., 413 S.W.2d
BRIEF AND APPENDIX FOR APPELLEE 24
474, 477-78 (Tex. Civ. App. Eastland 1967 error ref’d n.r.e.) (“Where upon a
construction of the contract it is determined that the agent has ... pledged his own
responsibility in addition to that of his principal, he will be bound accordingly. His
liability is not predicated upon his agency, but upon his contract obligation”).
Applying those principles of “contract law and agency”, the Texas Supreme
Court in In re Rubiola, 334 S.W.3d 220, 224-25 (Tex. 2011) held that when a
contract defined “parties” to include “individual partners, affiliates, officers,
directors, employees, agents and the representatives of any party”, that “broad
definition, at minimum made ... officers and representatives ... parties to the
agreement under the agreement’s terms.” In this action the lease defined the term
“Landlord” to include “Landlord and its agents, employees, invitees, licensees and
visitors.” Rubiola demonstrates that under applicable principles of contract law and
agency, “at minimum” the lease’s broad definition of “Landlord” made “agents” of
Edom Corner parties to the lease under the lease’s terms. As controlling member of
Edom Corner, Berry was by statute an “agent” of Edom Corner, Tex Bus. Org. Code
§101.254(a) (“...each governing person of a limited liability company ... vested with
actual or apparent authority ... is an agent of the company...”). Indeed, Berry was
Edom Corner’s registered agent. Accordingly, Berry, as an agent of Edom Corner,
was a party to the lease and “bound accordingly,” Vincent Murphy, 413 S.W.2d at
BRIEF AND APPENDIX FOR APPELLEE 25
478.
Appellants’ brief (pp.27-29) argues that this interpretation of the lease violates
the requirement that courts avoid, “‘when proper and possible’”, a “‘construction
which is unreasonable, inequitable and oppressive’”. However, “an ‘unreasonable’
construction refers to one that subverts the objective intent of the parties as
manifested in the language of the contract documents and not one that merely dashes
the idiosyncratic expectations of a losing litigant ... [The Court] cannot use
‘unreasonableness’ as a mandate for rewriting an unambiguous contract to make a
questionable business decision more palatable for the party seeking to avoid it ...
Parties to a contract are masters of their own choices ... They are entitled to select
what terms and provisions to include in a contract before executing it ... [The Court]
cannot change their agreement merely because ... one of the parties finds it
distasteful,” Frost National Bank v. L & F Distributors, Ltd., 122 S.W.3d 922, 931
(Tex. App. Corpus Christi 2003) rv’d on other grounds 165 S.W.3d 310 (Tex. 2005);
see also Thedford Crossing, L.P. v. Tyler Rose Nursery, Inc., 306 S.W.3d 860, 867
(Tex. App. Tyler 2010 no pet) (“Finally, we enforce an agreement as written ... We
are not permitted to rewrite an agreement to mean something it did not ... We cannot
change the contract simply because ... one of the parties comes to dislike its
provisions or thinks that something else is needed in it ... Parties to a contract are
BRIEF AND APPENDIX FOR APPELLEE 26
masters of their own choices and are entitled to select what terms and provisions to
include in or omit from a contract”). As the Texas Supreme Court stated more than
a century ago, “Parties make their own contracts , and it is not within the province of
this court to vary their terms in order to protect them from the consequences of their
own oversights and failures in nonobservance of obligations assumed,” Dorrah-
Kelly Mercantile Co., v. Orient Ins. Co., 135 S.W. 1165, 1167 (Tex. 1911).
In this action, Berry was not an “invitee, licensee or visitor” of Edom Corner.
Berry was the sophisticated attorney with expertise in real estate and finance who, as
governing member and agent of Edom Corner, authored the lease, controlled all
matters pertaining to the lease, and controlled all facets of the Edom litigation.
Thus, including Berry within the lease’s broad definition of “Landlord” and,
accordingly, holding Berry jointly liable with Edom Corner for breach of the lease’s
terms, were not “unreasonable, inequitable or oppressive”; indeed, rewriting the
lease to enable Berry to avoid that liability would not have been “possible or
proper”. The final judgment therefore correctly held Berry jointly liable with Edom
Corner for the attorney fees and costs incurred by Mary Ellen’s in the Edom
litigation and this action.
E. The District Court correctly entered summary judgment awarding
Mary Ellen’s recovery from Edom Corner and Berry the attorney
fees and costs incurred by Mary Ellen’s in the Edom litigation and
in this action
BRIEF AND APPENDIX FOR APPELLEE 27
1. The recovery was sought and obtained under the lease and
Chapter 38
Appellant’s brief (p. 31) contends that the claims of Mary Ellen’s “in this
action [are] premised solely on the Texas Uniform Declaratory Judgments Act”
which “is not available”. The contention is nonsense. The pleadings of Mary
Ellen’s, the District Court’s conclusions, and the final judgment were predicated on
the lease and Chapter 38, both of which were definitely “available”.
2. The District Court properly considered “pleadings and affidavits
previously filed but not attached”
Relying on decisions such as Gillam v. Sullivan, 352 S.W.2d 507 (Tex. Civ.
App. Fort Worth 1961 error ref’d n.r.e.) appellants’ brief (pp. 31-32) argues that
Mary Ellen’s “had attached affidavits to prior motions for summary judgment ... but
wholly failed to attach any summary judgment proof to” the third amended motion,
and “reference to prior pleadings and affidavits previously filed but not attached to
the motion for summary judgment is not proper summary evidence.” More recent
authority, however, holds otherwise, Dixie Dock Enterprises v. Overhead Door
Corp., 2002 WL 244324 at *3 (Tex. App. Dallas 2002 no pet) (“‘[O]nce filed, an
affidavit in support of summary judgment is subject to consideration in connection
with a subsequent amended motion even though not attached to the latter’” quoting
Whitaker v. Huffaker, 790 S.W.2d 761, 763 (Tex. App. El Paso 1990 writ den)).
BRIEF AND APPENDIX FOR APPELLEE 28
Moreover, in this action for breach of contract, Chapter 38 at Texas Civil Practices
& Remedies Code Section 38.004 (“Section 38.004") codified the District Court’s
power, in a “proceeding before the court”, to “take judicial notice of the contents of
the case file without receiving further evidence.” Of course, “Summary judgment is
a proceeding before the court” to which Section 38.004 applies, Somers v. Aranda,
322 S.W.3d 342, 346 (Tex. App. El Paso 2010 no pet). Indeed, the District Court
had the power to “take judicial notice of court records in a cause involving the same
subject matter between the same parties ... Consequently, they were properly
considered by the court in” rendering summary judgment, Sparkman v. Kimmey, 970
S.W.2d 654, 659 (Tex. App. Tyler 1998 pet den); see also Suttles v. Kastleman, 2002
WL 1729519 at *2 (Tex. App. Austin 2002 no pet) (“Applying [Chapter 38] we hold
that the district court properly considered the affidavits, promissory note and
summary judgment order contained in the case file” but not attached to the summary
judgment motion under consideration).
3. Edom Corner and Berry failed to rebut the statutory presumption
that the fees and costs, determined by the Court on judicial notice
to be usual and customary, were reasonable
In addition to empowering the District Court in this “proceeding before the
court” to take “judicial notice of the contents of the case file”, Section 38.004 also
empowered the District to “take judicial notice of the usual and customary attorney’s
BRIEF AND APPENDIX FOR APPELLEE 29
fees”. Moreover, Chapter 38 at Texas Civil Practices & Remedies Code Section
38.003 (“Section 38.003") established a statutory rebuttable presumption that “the
usual and customary fees for a claim of the type described in Section 38.001 are
reasonable”. Accordingly, under Section 38.003 “‘[I]t is presumed that the usual
and customary fees for a claim of the type described in section 38.001 are
reasonable,’” and Section 38.004 “permits a trial court in a proceeding before the
court to take judicial notice of usual and customary fees as well as the contents of a
case file to award attorney’s fees under the statute, even without receiving additional
evidence,” Van Nguyen v. Bui, 2015 WL 1825658 at *3 (Tex. App. Austin 2015 no
pet) citing the holding in Flint & Assoc., v. Intercontinental Pipe & Steel, Inc., 739
S.W.2d 622, 626 (Tex. App. Dallas 1987 writ den) that the “trial court may
determine reasonable attorney’s fees based on knowledge of usual and customary
rates and review of own file, even if no other evidence offered”. In addition,
Chapter 38 at Texas Civil Practices & Remedies Code Section 38.005 (“Section
38.005") requires that the Chapter be “liberally construed to promote its underlying
purposes.” Thus, in this breach of contract action that “was in effect, tried to the
court in a summary judgment proceeding, ... the attorney’s fee award is governed by
Chapter 38 of the Code” under which the District Court could “take judicial notice
of the usual and customary fees” which “are presumed reasonable”, Laredo
BRIEF AND APPENDIX FOR APPELLEE 30
Independent School Dist., v. Trwevino, 25 S.W.3d 263, 265-66 (Tex. App. San
Antonio 2000 pet den); see also Paez v. Trent Smith Custom Homes, 2014 WL
1089751 at *4 (Tex. App. San Antonio 2014 no pet) (“Although there was no
testimony at the default judgment hearing regarding attorney’s fees, ... because the
trial court ‘may take judicial notice of the usual and customary and customary
attorney’s fees and of the contents of the case file without receiving further
evidence,’ there was sufficient evidence to support the ... award of attorney’s fees”).
Indeed, in determining on judicial notice the usual and customary fees, the District
Court would not have been bound even by “stipulations or uncontroverted evidence
regarding attorney’s fees”, Hartis v. Century Furniture Industries, inc., 230 S.W.3d
723, 737-38 (Tex. App. Houston [14th Dist] 2007 no pet) (Under Section 38.003 and
38.004 the “trial court may take judicial notice of (1) the contents of the file to
estimate the work involved, and (2) the customary fee for the claim involved, which
is presumed to be reasonable ... The trial court is not bound by stipulations or
uncontroverted evidence regarding attorney’s fees”).
In this action Edom Corner and Berry attempted to rebut the statutory
presumption established in Section 38.003 by claiming through the controverting
affidavit that the billing statements of the attorneys for Mary Ellen’s contained
“items of concern”. However, Edom Corner and Berry did not, and could not in
BRIEF AND APPENDIX FOR APPELLEE 31
good faith, rebut the statutory presumption of reasonableness of $135,283.42,
determined by the District Court on judicial notice to be usual and customary for
services by the attorneys for Mary Ellen’s in all of the thirteen proceedings which
comprised the Edom litigation, and $60,000, determined by the District Court on
judicial notice to be usual and customary for services rendered and to be rendered
by the attorneys for Mary Ellen’s in this action. Charging hourly rates which
exceeded by $75.00 per hour the rates charged by the attorneys for Mary Ellen’s, the
attorneys for Mary Ellen’s sought an award of $92,583.83 for services in only the
first forcible detainer action; and charging hourly rates which exceeded by $25.00
per hour the rates charged by the attorneys for Mary Ellen’s, the attorneys for Edom
Corner and Berry sought an award of $112,500 for services rendered and to be
rendered in this action. Thus, the District Court correctly concluded in the final
judgment that Edom Corner and Berry failed to rebut the presumption that the fees
and costs, determined by the District Court on judicial notice to be usual and
cusomary, were reasonable.
CONCLUSION AND PRAYER
The District Court in the final judgment correctly and properly awarded Mary
Ellen’s the attorney fees and costs to which Mary Ellen’s was entitled as a matter of
law. Mary Ellen’s therefore prays that the final judgment be in all respects affirmed,
BRIEF AND APPENDIX FOR APPELLEE 32
and for all additional appropriate relief.
Respectfully submitted,
/s/ Larry M. Lesh
Larry M. Lesh
State Bar No. 12225000
LAW OFFICE OF LARRY M. LESH
1 Forest Park Drive
Richardson, Texas 75080
(214) 237-8598
(972) 699-1456 Facsimile
lmlesh@sbcglobal.net
R. Paul Elliott
R. PAUL ELLIOTT
Attorney At Law
A Professional Corporation
301 S. Main
Canton, Texas 75103
(903) 567-4141
(903) 567-6228 Facsimile
rpe@elilaw.com
ATTORNEYS FOR MARY ELLEN’S
BRIEF AND APPENDIX FOR APPELLEE 33
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A) as amended, the
undersigned certifies that the word count of the computer program used to prepare the
foregoing brief reflects that the foregoing brief contains 7504 words.
/s/ Larry M. Lesh
Larry M. Lesh
CERTIFICATE OF SERVICE
A true copy of the foregoing brief for appellees was served on the following
counsel for Edom Coner and Berry by electronic transfer on the 21st day of May,
2015:
Richard L Ray
Ray & Thatcher
Attorneys at Law
300 South Trade Days Blvd.
Canton, Texas 75103
rlray@rayandthatcher.com
Katherine A. Ferguson
Renshaw, Davis & Ferguson,
L.L.P.
28900 Lee Street Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
rdflawoffice@yahoo.com
/s/ Larry M. Lesh
Larry M. Lesh
BRIEF AND APPENDIX FOR APPELLEE 34
APPENDIX
A. The Lease
BRIEF AND APPENDIX FOR APPELLEE 35
11:36:11a.m. 10-12-2012 13128
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It's The Berrys
Retail Lease
'
I Date: September 1, 2004
Terms
Landlord: Edom Corner, LLC, a Texas limited liability company
Landlord's Address: 1533 VZCR 4810, Chandler, Texas 75758
Shopping Center: . Edom Corner
Tenant It's The Berrys, LLC, a Texas limited liability company
I Tenant's Address: 9480 FM 279; Bro-wnsboro, Texas
Tenant's Trade Name: It's The Berrys
Premises (See Exhibit A hereto)
Approximate square feet: 2,950
Name of Shopping Center: Edom Corner
~
Street address/suite: 18334 FM 314
c·ity, state, zip~ Brownsboro, Texas 75756 (physical location is Edom, Texas)
Base Rent (monthly): $1,100 for the First, Second and Third LeaseYears; $1,800 for the Fourth
Lease Year, with the monthly Base Rent being $1,836 in the Fifth Lease Year and $36 higher per
month for each Lease Year thereafter.. As an example, the monthly Base Rent for the Sixth
Lease Year would be $1,872.
Term . (months): 3 Lease Years, begllming on the Comrriencement Date ,and renewable at
Tet:umt's op_ti6n for 6ne Lease Year at lil time up to 12. more Lease Years after the Third Lease
Year by Tenant providing Written noti.ce ioLandiord betWeen November 1st and November 30th
of a Lease Year that Teriantde~ires to e'xtend the term forthe next succeeding Lease Year.
Tenant's Pro Rata Share: An amount eq1,1al to $475 per month for the Fjrst, Second, Third and
Follrtli Lease Years; thereafter, coniinencirig vvith the Fifth Lease Year, Tenant's Pro Rata Share
shall be $?.so
higher per month for each Lease Year
thereafter. For example, Tenant's Pro Rata
. Share for the SiXth Year woUld be $494 per month.
Inifu!l Mo~thly CAM: N/A
·:rni``(M~ritltiy T~and Insurance Charge: N/A
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EXHIBIT
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Commencement Date: September 1, 2004
Termination Date: August 31,2007
Security Deposit: Waived
I Use: Retail (non-food)
Lease Year: A period of twelve months commencing on September 1st of a given calendar year
I and ending on August 31 sr of the next succeeding calendar year.
Definitions
''Rent" means Base Rent plus any other amounts of money due Landlord by Tenant.
I "Common Areas" means all facilities and areas of the Shopping Center that are intended and
designated by Landlord from time to time for .the common, general, and nonexclusive use of aU
I. tenants of the Shopping Center. Landlord has the exclusive control over and right to manage the
Common Areas.
I "Landlord" means Landlord and its agents, employees, inv:itees, licensees, or visitors.
"Tenanf' means Tenant and its agents, employees, invitees, licensees, or visitors.
rc ••Essential Services" means utilities reasonably necessary for occupancy of the Premises for the Use,
including gas, electricity, water, heating an(fair conditioning, and waste disposal services.
Clauses and Covenants
A. Ten ant agrees to--
1.Lease the Premises for the entire Term beginning on the Commencement Date and
ending on the Termination Date, unless Tenant renews the Lease for one or more successive
Lease Years as herein~bove provided.
2. Accept the Premises in their present condition "AS IS," the Premises being
currently suitable for Tenant's intended Use.
3. Obey all laws, ordinances, orders, and rules and regulations applicable to the use,
condition,. and occupancy of the PremiseS, including the rules and regulations of the Shopping
Center adopted by Landlord.
4. Pay monthly, in adyance, on _the first day of the month, the Base Rent and Tenant's
Pro Rata Share to Landlord at Landlord's Address.
5. Pay, as additional Rent, all otli'e~ amounts due under this Lease.
2
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6. Pay a late charge of 5 percent of any Rent not received by Landlord by the tenth day
after it is due.
7. Obtain and pay for all utility services used by Tenant and not provided by Landlord.
I 8.
Landlord.
Pay Tenant's Pro Rata Share of any utility services used by Tenant and provided by
I 9. Allow Landlord to enter the Premises to perfonn Landlord's obligations and inspect
the Premises, provided, however, that except in an emergency, Landlord shall not enter the
Premises outside of Tenant's operating hours without accompaniment from an 0\\11er or designee
of Tenant.
10. Repair, replace, and maintain any part of the Premises that Landlord is not obligated
t to repair, replace, or maintain, normal wear excepted.
11. Keep the sidewalks, service ways, and loading areas adjacent to the Premises clean
and unobstructed.
t 12. Repair any damage to the Premises caused by Tenant.
r 13. Submit in v.Titing to Landlord any request for reparrs, replacement, and
maintenance that are the obligations of Landlord.
14. Indemnify, defend, and hold Landlord hannless from any loss, attorneys' fees, court
and other costs, or claims arising out ofTenant's use of the Premises.
15. Vacate the Premises on termination of this Lease.
16. On request, execute an estoppel certificate that states the Commencement Date and
Termination Date of the Lease, identifies any amendments to the Lease, describes any rights to
eXtend the Term or purcha`` rights, lists defaults by Landlord, and provides any other
informatio11 reasonably requested.
B. Tenant agrees not t()--
1. Use the Premises for any pwpose other than that stated in this Lease.
2. Create a nuisance.
3. Interfere with any other tenant's normal hus.iness operations or Landlord's
management of the Shopp.ing Center.
4. Pennit any waste.
5. Use the Premises in .any way that is extra hazardous, would increase insurance
-premiums, or would void insurance ori the Shopping Center.
6. Change Landlord's lock system.
3
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7. Alter the Premises.
I 8. . Allow a lien to be placed on the Premises.
9. Assign this Lease or sublease any portion of the Premises witlwut Landlord's
I written consent
10. Use the roof on the Premises.
11. Place any signs on the Premises \Vithout Landlord's \Vritten consent
C. Landlord agrees t~>-
Lease to Tenant the Premises foi the entire Term beginning on the Commencement
1.
Date and ending on the Termination Date unless Tenant renews this Lease for one or more
successive Lease Years as heremabove provided.
2. Obey all laws, ordinances, orders, and rules and regulations applicable to the use,
condition, and occupancy of the Shopping Center.
3. Provide normal utility service connections to the Shopping Center.
I 4. Repair, replace, and maintain the (a) roof, (b) foundation, (c) parking and Common
Areas, and (d) structural soundness of the exterior wallS, excluding windows and store fronts.
5. Insure the Shopping Center against all risks of direct physical loss in an amount
equal to at least 90 percent oftbe full replacement cost ofthe Shopping Center as of the date of
the Joss and liability; Tenant will have no claim to any proceeds of Landlord's insurance policy.
. 6. Return the Security Deposit to Tenant, less itemized deductions, if any, within thirty
days after the tennination of this Lease.
D. La11dlord agrees not tQ--
1. Interfere with Tenant's possession of the Premises as long as Tenant is not in
default.
E. Landlord a.Qd Tenant agree to the following!
I. Alterations. Any physical additions or· improvements to the Premises made by
Tenant.will bec6rne tl}e property ofLandlord..L.al].dlord may require that Tenant, at termination
of this Lease and at Tenant's expense, remove a:n:y'physiCal additions and improvements, repair
any alterations, .and restore the Premises to the condition existing at the Commencement Date,
noooai wear excepted. ..
2. Abatement. Tenant's covenant to pay Rent and Landlord's covenants are
independent. Except as otherwise provided, Ten ant will not be entitled to abate :R.ent for any
---reason.
4
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_,_.
~U7:S6a.m. ~0-12-2012 17128
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9035676228
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3. Release of Claims/Subrogation. Landlord and Tenant release each other from am·
claim, by subrogation or otherwise, for any damage to the Premises, ilie Shopping Center, ~r
I pen:onai property ·within the Shoppi11g Center, by reason of fire or the elements, regardless of
cause, including negligence of Landlord or Tenant. This release applies only to the e,.,:tent that it
I is pennitted by law, the damage is covered by insurance proceeds, and the release does not
adversely affect any insurance coverage.
4. Casualty;Tota! or Partial Destruction
I a. lfthe Premises are damaged by casualty and can be restored within ninety days, Landlord wiB, at
its expense, restore the Premises to substantially the same condition that existed before the
I casualty. If Landlord fails to complete restoration within ninety days from the; date of v.Titten
noti£cation by Tenant to Landlord of the casualty, Tenant may terminate this Lease by ·written
notice to Landlord.
I b. If the Premises cannot be restored v.1thin ninety days, Landlord has an option to restore the
Premises. If Landlord chooses not to restore, this Lease will terminate. If Landlord chooses to
restore, Landlord will notify Tenant of the estimated time to restore and give Tenant an option to
terminate this Lease by notifYing Landlord v.rithin ten days. If Tenant does not terminate this
Lease, the Lease will continue and Landlord "'ill restore the Premises as provided in a. above.
c. To the extent the Premises are untenantable after the casualty and the damage was not caused by
Tenant, the Rent -will be adjusted as may be fair and reasonable.
5. Condemnation/Substantial or Partial Taldng
a. 1f the Premises cannot be used for the purposes contemplated by this Lease
because of condemnatjon or purchase in lieu of condemnation, this Lease will
terminate.
b. "Wbether or not any portion of the Premises is taken by condemnation or
purcha.5e in lieu of condemnation, Landlord and Tenant may eJect to terminate
this Lease if 50 percent or more of the Common Area is taken.
c. If there is a condemnation or purchase in lieu of condemnation and this Lease
is not terminated, Landlord will, at Landlord's expense, restore the Premises,
and the Rent payable during the unexpired portion of the Term will be
adjusted as may be fair ap.d reasonable.
d. Tenant \Viii have no claim to the condemnation award or proceeds in lieu of
condemnation.
· 6.. Defauit by Landlord/Events., Defaults by· Landlord are failing to comply with aily
. provision of this Lease within thll-tY days after V.ntten notice and failing to provide Essential
Services to Tenarit within ten days after Written notice.
5
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7. Default by Landlord/Tenant's Remedies. Tenant's remedies for Landlord's default
are to sue for damages and, if landlord does not provide an Essential Service for thirty days after
I default, terminate this Lease.
8. Default by Tenant/Events. Defaults by Tenantare (a) failing to pay timely Rent, (b)
I abandoning or vacating a substantial portion of the Premises, and (c) failing to comply within ten
days after \Vritten notice with any provision of this Lease other than the defaults set forth in (a)
and (b) above. ·
I 9. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's default
are to (a) enter and take possession of the Premises, after which Landlord may relet the Premises
I on behalf of Tenant and receive the rent directly by reason of the reletting, and Tenant agrees to
reimburse Landlord for any expenditures made in order to relet; (b) enter the Premises and
perform Tenant's obligations; and (c) terminate this Lease by '11\'f:itten notice and sue for
I damages. Landlord may enter and take possession of the Premises by self-help, by picking or
changing locks if necessary, and may lock out Tenant or any other person who may be
occupying the Premises, until the default is cured, without being liable for damages.
10. Default/Waiver/}.,.fitigation. It is not a waiver of default if the nondefaulting party
fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set
forth in this Lease does not preclude pursuit of other remedies in this Lease or provided by law.
Landlord and Tenant have a duty to mitigate damages.
11. Security Deposit. If Tenant defaults, Landlord may use the Security Deposit, if any,
to pay arrears of Rent, to repair any damage or injlll}', or to pay any expense or liability incurred
by Landlord as a result of the default
12. Holdover. If Tenant does not vacate the Premises following tennination of this
Lease, Tenant will become a tenant at will and must vacate the Premises on receipt of notice
from Landlord. No holding over by Tenant, whether with or v.ithout the consent of Landlord,
will extend the Term. ·
13. Alternative Dispute Resolution. Landlord and Tenant agree to mediate in good faith
before filing a suit for damages.
14. Attorney's Fees. If either party retains an attotney to enforce this Lease, the party
prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs.
15. Venue .. Venue is in the county in which the Premises are located.
16. ·Entire Agreement. Tpis Lease, together with the attached exhibits and riders, is the
entire agreement of the parties, and there are no oral representations, warranties, agreements, or
promises pertaining to this Lease or to any expressly mentioned exhibits and riders not
incoryorated in writing in this Lease.
--- ______ _]]_.__Amendment of..Lease. This Lease may be amended-only by. an instrument in-writing
signed by Landlord and Tenant.
6
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18. Limitation of Warranties. TiffiRE ARE NO IMPLJED \VARRA.,.1\T1ES OF
MERCR.L\..~TABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF A...W
I OTilER KIND ARISING OUT OF TillS LEASE, AJID THERE ARE NO WARRAKTIES
THATE:X.'TEl\'D BEYOJ\11) TIIOSEEXPRESSLY STATED IN TillS LEASE.
I 19. Notices. Any notice required or permitted under this Lease must be in v.'Iiting. Any
notice required by this Lease will be deemed to be delivered (whether actually received or not)
V.rhen deposited with the United States Postal Service, postage prepaid, certified mail, retum
I receipt requested, and addressed to the intended recipient at the address shown in this Lease.
Notice may also be given by regular mail, personal delivery, courier delivery, facsimile
I transmission, or other commercially reasonable means and will be effectiYe when actually
received. Any address for notice may be changed by \.\ntten notice delivered as provided herein.
20. Use of Common Areas. Tenant will have the nonexclusive right to use tbe Common
I Areas subject to such reasonable rules and regulations governing use as Landlord may prescribe.
Abandoned Property. Landlord may retain, destroy, or dispose of any property left
21.
'
on the Premises at the end ofilie Tenn.
LA.i'\l>LORD: EDOM CORNER, LLC,
a Texas limited liability company
By:~f6~i````~-~---
Berry,
Earl A. Jr., Member
TENANT: IT'S 'IRE BERRYS, LLC,
a Texas limited liability company
7
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