Subsea 7 Port Isabel, LLC v. Port Isabel Logistical Offshore Terminal, Inc. ( 2019 )


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  •                                   NUMBER 13-17-00144-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    SUBSEA 7 PORT ISABEL, LLC,                                                                  Appellant,
    v.
    PORT ISABEL LOGISTICAL OFFSHORE
    TERMINAL, INC.,                                                                              Appellee.
    On appeal from the 107th District Court
    of Cameron County, Texas.
    OPINION
    Before Chief Justice Contreras and Justices Rodriguez1 and Benavides
    Opinion by Chief Justice Contreras
    We issued our opinion and judgment in this case on June 20, 2019.
    1 The Honorable Nelda V. Rodriguez, former Justice of this Court, was a member of the panel at
    the time this case was submitted but did not participate in this decision because her term of office expired
    on December 31, 2018.
    Appellant/cross-appellee Subsea 7 Port Isabel, LLC (Subsea) has filed motions for
    rehearing and for en banc reconsideration. Without changing our previous disposition,
    we deny the motions, withdraw our June 20, 2019 opinion and judgment, and issue this
    substitute opinion and its accompanying judgment in their place.
    This is a landlord-tenant dispute centering on the question of whether a sublease
    agreement was effectively renewed. The tenant, Subsea, contends by three issues that
    the trial court erred in awarding damages and prejudgment interest to the landlord,
    appellee/cross-appellant Port Isabel Logistical Offshore Terminal, Inc. (PILOT), after a
    jury found that the sublease was not renewed. PILOT brings eleven unenumerated cross-
    issues challenging (1) the trial court’s failure to award attorney’s fees, and (2) a provision
    in the final judgment allowing Subsea to remove improvements from the subject premises.
    We affirm in part and reverse and remand in part.
    I. BACKGROUND
    Subsea is an engineering and construction firm that manufactures and installs
    undersea oil and gas pipelines. Starting in 2007, PILOT leased around fifty-four acres at
    the port of Port Isabel, Texas, from the Port Isabel-San Benito Navigation District
    (PISBND). On April 29, 2008, Subsea entered into an agreement with PILOT to sublease
    about half of that property (the sublease premises or subject property), to be used as a
    “spoolbase” for its undersea pipeline operations. The agreement stated that “[t]his
    Sublease shall commence on May 1, 2008, and terminate on May 31, 2012 (the ‘Initial
    Term’).” Section II of the agreement, entitled “Option to Renew,” stated in its entirety as
    follows:
    A.
    [PILOT] represents and warrants that the PRIME LEASES’ [i.e., the leases
    between PILOT and PISBND] initial term expires May 31, 2012, and that
    2
    [PILOT] has the right to renew the term thereof for up to four (4) additional
    five (5) year terms through the exercise of renewal options pursuant to this
    Sublease.
    B.
    [Subsea] is hereby granted, subject to the terms hereof, and provided
    [PILOT] has exercised its option to renew the PRIME LEASES, and further
    provided that [Subsea] is not in default in any particular under this Sublease
    beyond any notice and cure period as set forth in this Sublease; up to four
    (4) options to renew and extend the term of this Sublease for a term of five
    (5) years (i.e., no more than four options for five years each) on the
    expiration of the said initial lease term (of five [5] years) under this Sublease,
    and any additional option term, as appropriate, if exercised.
    C.
    No later than March 31, 2012 (and each fifth (5th) March 31 thereafter to
    and including March 31, 2027, if [Subsea] has exercised its option to renew
    this Sublease) [Subsea] shall advise [PILOT] in writing whether it wishes to
    exercise its option to renew the Sublease for the subsequent five (5) year-
    term beginning on June 1 of such year. If [Subsea] notifies [PILOT] that it
    wishes to renew the Sublease, [PILOT] shall advise [Subsea] in writing
    whether it will renew the PRIME LEASES for the same five (5) year term by
    no later than 30 calendar days following receipt of [Subsea]’s notice. If
    [PILOT] notifies [Subsea] that it has elected to renew the PRIME LEASE,
    [Subsea]’s election to renew the Sublease shall be binding and irrevocable
    and the Sublease shall be renewed for the following five (5) year term.
    D.
    Any such option (if exercised) will be under the same terms, covenants and
    conditions of this Sublease, so far as is applicable, except as to rental fees
    (which are addressed in Paragraph VI below), and subject to the exceptions
    and reservations contained in this Sublease.
    As to rental fees, the agreement stated that “[d]uring the ‘rental abatement period’ (as
    that term is defined in the PRIME LEASES),” Subsea will pay a base rent of $11,800 per
    month, and after that period, the base rent will increase to $20,000 per month. The
    agreement further stated:
    In the event of a renewal or extension of this Sublease, through the exercise
    of options or otherwise, the said rental and related fees shall be subject to
    adjustment, but at no time shall the monthly rentals or charges be less than
    the foregoing amounts, and same will be calculated by taking the foregoing
    3
    amounts and adjusting same in accordance with the Producer’s Price Index
    (“for all goods”), as calculated every five (5) years (i.e., in the fifth [5th] year
    of the relevant term), in conjunction with an option to renew.
    ....
    Any late payment (i.e., ten days after the due date) will require the payment
    of a charge of 10% of the amount due to avoid a default; any holding over
    beyond the expiration of the said “lease term” (or any extension thereof) will
    require the payment of pro rata rentals, in accordance with the rates above.
    (Brackets and quotation marks in original.) Finally, the sublease agreement provided that
    any modifications or amendments to the agreement must be in writing and signed by the
    parties, and “[a]ny oral representations or modifications concerning this instrument shall
    be of no force or effect.”
    Also on April 29, 2008, Subsea, PILOT, and PISBND entered into a “Non-
    Disturbance Agreement” under which PISBND consented to PILOT subleasing the
    subject premises to Subsea. The “Non-Disturbance Agreement” provided that PISBND
    and PILOT will not amend or modify their lease agreement “in any way that affects the
    [Sublease] Premises or [Subsea]’s rights under the Sublease” without Subsea’s prior
    written consent.
    Subsea claims that it spent over $40 million to improve the subject property by,
    among other things, building a dock, building facilities for fabricating pipes and loading
    them onto ships, and stabilizing the ground with crushed rock. But after the Deepwater
    Horizon oil spill in 2010, drilling activity in the Gulf of Mexico slowed dramatically and the
    facilities on the sublease premises went virtually unused for several years. Thus, in early
    2012, Subsea sought to renegotiate the terms of the Sublease before renewing under the
    agreement. According to Subsea, its operations manager Greg Donnelly spoke with
    PILOT’s then-president, John Stafford, in February or March 2012 about renewing the
    sublease and about the possibility of “rent abatement.” Subsea asserts that Stafford told
    4
    Donnelly he would discuss the matter with PILOT’s board, and that in the meantime,
    Subsea did not need to send written notice of its intent to renew the sublease before
    March 31, 2012, as required by the agreement.
    Steve Bearden, PISBND’s executive director, testified that Stafford told him
    “[Subsea] was going to renew the sublease.” However, he acknowledged that Stafford
    never told him that Subsea “actually renewed the sublease.” Bearden testified that PILOT
    negotiated a new lease with PISBND with a lower rental rate; that the new lease was
    signed two days after the deadline for Subsea to renew the sublease; and that PISBND
    would not have signed the new lease if it did not believe that Subsea had already renewed
    its sublease.
    David Dennis, then PILOT’s vice president, testified that Stafford told him prior to
    March 31, 2012, that Subsea “wanted to renew [its] lease.” Laura Butler, a Subsea
    attorney, testified that Donnelly told her prior to March 31, 2012, that he had conversations
    with Stafford about renewing the sublease.2
    In May 2012, Scott Brown replaced Stafford as PILOT’s president. Donnelly sent
    an email to Brown on May 22 stating that Subsea intended to renew the lease. The
    following day, Butler sent a notice of renewal via certified mail. PILOT did not respond to
    the notices, believing that they were untimely and therefore invalid. Nevertheless, PILOT
    continued to send rent invoices to Subsea for two years after the initial sublease term
    expired, and Subsea paid those invoices. Brown testified at trial that he did not believe it
    2  Subsea misrepresents the testimony of Dennis and Butler in its brief. It states in its brief that
    Dennis “testified that Stafford told him prior to March 31, 2012 that [Subsea] had renewed the Sublease.”
    In actuality, Dennis testified merely that Stafford told him about Subsea’s intention to renew the sublease,
    not that the sublease was actually renewed. Subsea also states in its brief that Butler “testified that
    sometime before March 31, 2012, Donnelly told her that he had renewed the Sublease on behalf of
    [Subsea].” But Butler testified merely that Donnelly told her he had a “conversation” with Stafford “about
    the option to renew”; she did not testify that Donnelly told her the sublease had actually been renewed.
    5
    was necessary for PILOT to advise Subsea that it considered Subsea a holdover tenant
    in violation of the sublease agreement.
    In April 2014, PILOT sent an eviction notice to Subsea, demanding that Subsea
    vacate the premises by May 31, 2014. Subsea, believing that the sublease had been
    effectively renewed, refused to do so, leading to the instant litigation. In its live pleading,
    PILOT sought a declaratory judgment confirming that the sublease expired and was not
    renewed, damages for trespass3 and breach of contract, and attorney’s fees. Subsea’s
    live pleading sought a declaration that the sublease was validly renewed, damages for
    breach of contract and promissory estoppel, and attorney’s fees.4
    After two weeks of trial, ten of twelve jurors found that: (1) the parties did not orally
    agree to modify the renewal provisions of the sublease such that Subsea’s oral
    notification and subsequent written notice were sufficient to renew the sublease; (2)
    PILOT is not estopped from denying that Subsea renewed the sublease; (3) PILOT did
    not waive strict compliance with the renewal provisions of the sublease such that
    Subsea’s oral notification and subsequent written notice were sufficient to renew the
    sublease; (4) Subsea trespassed on PILOT’s property; (5) PILOT is entitled to $634,710
    in damages for the trespass; and (6) Subsea did not substantially and foreseeably rely to
    its detriment on PILOT’s promise, if any, that Subsea did not need to send written notice
    3  PILOT asserted in its live pleading that, “[a]s of June 1, 2014, and for all months since, market
    rent for the [sublease premises] has been $375,000 per month.” Because Subsea refused to vacate and
    was paying only $20,000 per month, PILOT contended that it was entitled to “extraordinary money
    damages,” presumably amounting to $355,000 per month.
    4  PILOT initially filed suit against Subsea in Harris County, and Subsea filed a separate suit against
    PILOT in Cameron County. The parties agreed to transfer the Harris County suit to Cameron County and
    to consolidate both proceedings. The trial court then re-aligned the parties pursuant to PILOT’s motion,
    with PILOT designated as the plaintiff/counter-defendant and Subsea designated as the defendant/counter-
    plaintiff.
    6
    of renewal before March 31, 2012.5
    The trial court’s judgment, dated December 13, 2016, stated that Subsea “became
    an unlawful trespasser as of June 1, 2014,” and it awarded $634,710 in damages to
    PILOT, along with pre-judgment interest “at the simple rate of 5% per year beginning on
    June 1, 2014, through the day preceding the date of this Final Judgment, which is the
    amount of $80,425.58 as of December 13, 2016,” and post-judgment interest. The
    judgment further provided:
    [Subsea] may remove any or all property and improvements located on the
    [subject property] (including crushed rock), until thirty days from the date of
    this Judgment or the expiration of any period during which this Final
    Judgment is superseded by the filing of a bond (or cash in lieu of bond) in
    accordance with Texas Rule of Appellate Procedure 24, provided that
    [Subsea] shall be responsible for any costs or expense to repair any
    physical damage to the property cased by such removal, and further
    provided that [Subsea] shall not be entitled to remove the dock located on
    the property . . . .
    All property, whether real or personal, including without limitation fixtures
    and improvements, remaining on the [subject property] after the expiration
    of thirty days from the date of this Judgment or after the expiration of any
    period during which this Final Judgment is superseded by the filing of a
    bond (or cash in lieu of bond) in accordance with Texas Rule of Appellate
    Procedure 24, is solely and exclusively the property of PILOT.
    The judgment did not award attorney’s fees to PILOT. Both parties perfected appeals.
    II. SUBSEA’S ISSUES
    A.    Affirmative Defenses
    By its first issue, Subsea contends that the trial evidence conclusively established
    its affirmative defenses of equitable estoppel, quasi-estoppel, and waiver. We construe
    the argument as challenging the legal sufficiency of the evidence to support the jury’s
    rejection of those defenses.
    5   The trial court previously granted a directed verdict dismissing PILOT’s breach of contract claims.
    7
    1.      Standard of Review
    Subsea had the burden to prove estoppel and waiver at trial. See TEX. R. CIV. P.
    94. When a party challenges the legal sufficiency of the evidence supporting an adverse
    finding on an issue on which it had the burden of proof, that party must demonstrate on
    appeal that the evidence establishes, as a matter of law, all vital facts in support of the
    issue. Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 241 (Tex. 2001). We view the
    evidence in the light most favorable to the finding, and we assume that jurors credited
    testimony favorable to the verdict and disbelieved testimony contrary to it. City of Keller
    v. Wilson, 
    168 S.W.3d 802
    , 819 (Tex. 2005). We defer to the jury’s determination as to
    the credibility of the witnesses and the weight to give their testimony, and we indulge
    every reasonable inference in support of the finding. 
    Id. at 819,
    822.
    2.      Equitable Estoppel
    The jury found that PILOT is not estopped from denying that Subsea renewed the
    sublease. Estoppel “generally prevents one party from misleading another to the other’s
    detriment or to the misleading party’s own benefit.” Ulico Cas. Co. v. Allied Pilots Ass’n,
    
    262 S.W.3d 773
    , 778 (Tex. 2008) (citing Johnson & Higgins of Tex., Inc. v. Kenneco
    Energy, Inc., 
    962 S.W.2d 507
    , 515–16 (Tex.1998)). To establish equitable estoppel, a
    party must show: (1) a false representation or concealment of material facts; (2) made
    with knowledge, actual or constructive, of those facts; (3) with the intention that it should
    be acted on; (4) to a party without knowledge or means of obtaining knowledge of the
    facts; (5) who detrimentally relies on the representations.” Id.6
    In support of its first issue, Subsea points to Brown’s trial testimony, in which he
    6 In a civil case, when there has been no objection to the jury charge, evidentiary sufficiency is
    measured by the charge actually submitted. Osterberg v. Peca, 
    12 S.W.3d 31
    , 55 (Tex. 2000). Here, the
    charge precisely tracked the case law cited herein as to equitable estoppel and quasi-estoppel.
    8
    stated that he received Donnelly’s May 22, 2012 email advising him that Subsea intended
    to renew the sublease. Brown repeatedly testified that he did not reply to the email, or to
    subsequent correspondence from Subsea, because their efforts to renew the sublease
    after the time provided in the agreement were “bogus.” Brown stated that, after the
    contractual renewal period expired on March 31, 2012, he considered Subsea a holdover,
    month-to-month tenant.      However, PILOT did not notify Subsea that it believed the
    attempted renewal was invalid. When asked why he did not so notify Subsea, Brown
    testified:
    I did not send them a notice for several reasons. So first and foremost,
    when you negotiate a contract or a sublease, you put in the specific things
    that the parties want to receive notice about. And so, in the sublease itself
    and in the non-disturbance agreement, there are very clear things that you
    send a written notice about, where a notice is required. And so, you know,
    together, committees of each company with their lawyers come up with all
    the things where a formal written notice where a certified letter is required.
    And so, a notice that your lease is terminated and now you[’re] hold-over is
    not on that list.
    ....
    [Subsea] is a multi-billion dollar large corporation with lawyers on staff, lots
    of sophisticated employees who deal with contracts far more complicated
    than this, and I, as a businessman, believe and know that, you know,
    everybody is responsible for reading and operating under contracts on their
    own. You don’t have to hold somebody else’s hand and tell them that they
    are messing up. You know, if you want to give them a notice on something
    that you can give them notice on, you do that. But there is no hand holding
    in the business world with sophisticated companies dealing with each other.
    Brown later stated that he declined to notify Subsea that he considered them a
    holdover tenant because such a notice may have led Subsea to sue. He explained that
    PILOT was already subject to “another bogus lawsuit” brought by PISBND “for damage
    to our dock,” and because “we are a small company that can’t easily afford to be caught
    up in lawsuits,” he “certainly didn’t want to trigger a second one, at least until that first one
    was finished.” Brown testified: “I was going to try to lay low, work on business with other
    9
    customers, and get out of the lawsuit with [PISBND].”
    Brown explained why he thought there were “three major clues” from which
    Subsea should have known it was being considered a holdover tenant:
    [First], they knew that they had to send the notice by March 31, and they
    didn’t do that. So they know they are a hold-over by virtue of that.
    Two, they know that if they had renewed, that I would have to send them
    my 30 day response, making their renewal binding and irrevocable. And
    they knew that I didn’t do that. So they knew they were a hold-over in that
    way. And so I had no interest in making a renewal binding and irrevocable.
    I did not want to do that.
    And thirdly, we didn’t escalate the rent. So you can’t say, oh, great, you
    know, they didn’t escalate the rent on us and not know that you are a hold-
    over tenant. So as [a] big sophisticated company, they knew they were a
    hold-over tenant, and it’s not my job or my place to have to send them a
    letter to hold their hand to explain that to them.
    Subsea also notes that the rent invoices sent by PILOT after the initial sublease
    term ended, which were entered into evidence, do not indicate that the sublease had
    terminated or that Subsea was a holdover tenant; instead, they were identical to the
    invoices that had been sent prior to the end of the initial term. Brown and Bearden both
    testified that they first learned of PILOT’s position only when PILOT demanded Subsea
    vacate the premises in April 2014.
    As to the first two elements of equitable estoppel, Subsea argues that “it is
    undisputed that PILOT (a) knew that [Subsea] thought it had renewed the Sublease and
    (b) believed that [Subsea] had not renewed.”       We disagree—the jury could have
    reasonably inferred from Brown’s testimony, as set forth above, that PILOT believed
    Subsea should have known its attempted renewal was ineffective. In any event, Subsea
    does not identify any misrepresentation or concealment of material facts by PILOT. See
    Johnson & Higgins of 
    Tex., 962 S.W.2d at 515
    –16 (setting forth elements of equitable
    estoppel). Subsea contends that PILOT “intentionally concealed its intentions” from
    10
    Subsea but it does not explain whether or how PILOT’s “intention” to consider Subsea a
    holdover tenant is a “material fact,” the concealment of which could give rise to equitable
    estoppel. And even assuming PILOT’s failure to advise Subsea of its determination that
    the renewal was ineffective was a concealment of a “material fact,” Subsea does not
    identify whether or how it relied on that to its detriment. See 
    id. We conclude
    that
    Subsea’s equitable estoppel defense has not been established as a matter of law. See
    Dow Chem. 
    Co., 46 S.W.3d at 241
    .
    3.     Quasi-Estoppel
    Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right
    inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P.,
    
    22 S.W.3d 857
    , 864 (Tex. 2000); Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor
    Homes, Ltd., 
    349 S.W.3d 258
    , 268 (Tex. App.—Dallas 2011, pet. denied) (noting that
    “[q]uasi-estoppel (estoppel by contract) is a term applied to certain legal bars, such as
    ratification, election, acquiescence, or acceptance of benefits”). The doctrine applies
    when it would be unconscionable to allow a person to maintain a position inconsistent
    with one to which he acquiesced, or from which he accepted a benefit. 
    Lopez, 22 S.W.3d at 864
    . “Unlike equitable estoppel, quasi-estoppel does not require a showing of a false
    representation or detrimental reliance.” Forney 921 Lot Dev. 
    Partners, 349 S.W.3d at 268
    .
    Subsea cites cases which have held that a party who accepts benefits under a
    lease is precluded by quasi-estoppel from thereafter denying the lease’s validity. See
    Cadillac Bar W. End Real Estate v. Landry’s Rests., Inc., 
    399 S.W.3d 703
    , 706 (Tex.
    App.—Dallas 2013, pet. denied) (finding, where lease assignee took possession and
    operated a business on the subject property, that quasi-estoppel barred it from now
    11
    claiming that there was never an effective assignment); Twelve Oaks Tower I, Ltd. v.
    Premier Allergy, Inc., 
    938 S.W.2d 102
    , 111 (Tex. App.—Houston [14th Dist.] 1996, no
    writ) (holding, where lessee challenged the validity of a lease on basis of lack of landlord’s
    consent, that quasi-estoppel barred the claim because lessee “knew about the consent
    requirement but went ahead” with the agreement and “availed itself of the benefits of the
    lease for over a year”); see also Forney 921 Lot Dev. 
    Partners, 349 S.W.3d at 268
    –70
    (concluding that purchaser was not entitled to terminate contract for sale of land in a
    municipal utility district, even though the contract did not contain notice of tax and bond
    information as required by statute, because the contract’s terms stated that execution of
    the agreement constituted acknowledgement of receipt of statutory notice). Subsea
    argues that PILOT received benefits from the renewal of the sublease, including its rent
    payments and the improvements it built on the property.           Subsea also notes that,
    according to the evidence, PISBND would not have renegotiated its master lease with
    PILOT for a lower rental rate if PISBND knew that Subsea did not effectively renew the
    sublease. It argues that, under the doctrine of quasi-estoppel, PILOT may not now
    dispute the existence of the renewed sublease.
    We disagree that quasi-estoppel bars PILOT from taking the position it did in this
    case, i.e., that the sublease had not been renewed. PILOT argues that the benefits it
    received after May 31, 2012, were not the same benefits it would have been entitled to if
    the sublease had actually been renewed. The agreement provided that, “[i]n the event of
    a renewal or extension of this Sublease, through the exercise of options or otherwise,”
    the rental fees would be recalculated to adjust for inflation “in accordance with the
    Producer’s Price Index.” PILOT claims that, had the sublease been validly renewed, it
    would have been entitled to raise the rent under that provision; and because it did not
    12
    demand or receive higher rent payments, it did not “benefit” from its previous position for
    quasi-estoppel purposes. The sublease agreement also provided that Subsea would owe
    “pro rata rentals, in accordance with the rates above” in the event of “any holding over
    beyond the expiration” of the sublease. Brown testified that “rates above” referred to the
    standard rental rate applicable during the initial sublease term, not the inflation-adjusted
    rate that would take effect upon “renewal or extension.” If the jury believed Brown’s
    testimony, as was its prerogative, see City of 
    Keller, 168 S.W.3d at 819
    , 822, then PILOT
    would have been entitled to increase the rent after May 31, 2012 only if the sublease were
    validly renewed, and PILOT’s failure to demand that increased rent would support a
    reasonable inference that it did not accept the benefits of renewal.
    In any event, the evidence did not establish as a matter of law that PILOT took a
    position contrary to the position it took at trial. Bearden testified that Stafford told him
    Subsea was “going to renew the sublease,” but Stafford never told him that the renewal
    had been effectively accomplished. Indeed, it appears undisputed that PILOT never
    advised Subsea or PISBND about whether it believed the sublease had been renewed.
    Moreover, PILOT’s conduct in the two years following the attempted renewal—including
    continuing to accept rental payments and failing to notify Subsea whether it would renew
    its lease with PISBND—is consistent with a belief that the sublease had not been
    effectively renewed but that Subsea was instead a holdover tenant.
    Subsea places much emphasis on Brown’s testimony that he decided to “lay low”
    and not advise Subsea of PILOT’s position in the hopes that he could avoid a lawsuit.
    Though Brown’s conduct falls short of what might be considered full and transparent
    honesty, there is no indication that he was contractually required to advise Subsea of
    PILOT’s position.    Considering the circumstances, we do not believe it would be
    13
    “unconscionable” for PILOT to now claim that the renewal was invalid, because the jury
    was entitled to believe that it never took a position to the contrary. See 
    Lopez, 22 S.W.3d at 864
    . We conclude that Subsea’s quasi-estoppel defense was not established as a
    matter of law. See Dow Chem. 
    Co., 46 S.W.3d at 241
    .
    4.     Waiver
    Waiver is the intentional relinquishment of a right actually known, or intentional
    conduct inconsistent with claiming that right. Ulico Cas. 
    Co., 262 S.W.3d at 778
    (citing In
    re Gen. Elec. Capital Corp., 
    203 S.W.3d 314
    , 316 (Tex. 2006); Jernigan v. Langley, 
    111 S.W.3d 153
    , 156 (Tex. 2003); Bocanegra v. Aetna Life Ins. Co., 
    605 S.W.2d 848
    , 851
    (Tex. 1980)). The elements of waiver include: (1) an existing right, benefit, or advantage
    held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual
    intent to relinquish the right, or intentional conduct inconsistent with the right. 
    Id. (citing Tenneco
    Inc. v. Enter. Prods. Co., 
    925 S.W.2d 640
    , 643 (Tex. 1996)).
    Subsea contends that PILOT waived its right to complain about the timeliness of
    the notice of renewal by “consciously cho[osing] not to tell” Subsea about its position until
    almost two years after the fact. It cites Burke v. Shafer, 
    189 S.W.2d 444
    , 445 (Tex. App.—
    Austin 1945, writ ref’d w.o.m.), another case where a lessee was required to give written
    notice to the landlord of its intent to renew a lease. The lessees claimed they timely sent
    the required notice, but the landlord testified he did not remember receiving it. 
    Id. When the
    landlord later attempted to evict four years later, claiming the lessees failed to send
    the required notice, the Austin court of appeals held that, even if the landlord did not
    receive the written renewal notice, he waived his right thereto “by his stated action in
    conceding the right of the [lessees] to renew without increase of rental and accepting the
    rental for four years upon the concession that the right of renewal had been properly
    14
    exercised by the [lessees].” 
    Id. at 447.
    Subsea also cites Winslow v. Dillard Department
    Stores, Inc., 
    849 S.W.2d 862
    , 863 (Tex. App.—Texarkana 1993, writ denied). In that
    case, the landlord accepted nearly five years of rental payments; did not advise the tenant
    that it “considered the lease to be terminated”; and did not ask the tenant to vacate the
    property. 
    Id. The Texarkana
    court of appeals held that the landlord therefore waived his
    argument that the tenant failed to properly renew the lease, despite the fact that the lease
    provided that the landlord’s failure to declare a default does not waive the default. 
    Id. at 864.
    Again, Subsea relies on Brown’s testimony that he “la[id] low” to avoid any potential
    lawsuit, arguing that this shows PILOT “made an intentional decision not to enforce its
    rights and did so with the express purpose of keeping [Subsea] from going to court to
    resolve any doubts about the status of the Sublease.”
    We disagree that the evidence established as a matter of law that PILOT actually
    intended to relinquish, or intentionally acted inconsistently with, its right to complain about
    the timeliness of Subsea’s notice of renewal. See Ulico Cas. 
    Co., 262 S.W.3d at 778
    . As
    the Texas Supreme Court recently explained:
    Waiver is largely a matter of intent, and for implied waiver to be found
    through a party’s actions, intent must be clearly demonstrated by the
    surrounding facts and circumstances. There can be no waiver of a right if
    the person sought to be charged with waiver says or does nothing
    inconsistent with an intent to rely upon such right.
    Waiver is essentially unilateral in character and results as a legal
    consequence from some act or conduct of the party against whom it
    operates; no act of the party in whose favor it is made is necessary to
    complete it. Importantly, while waiver may sometimes be established by
    conduct, that conduct must be unequivocally inconsistent with claiming a
    known right.
    Shields Ltd. P’ship v. Bradberry, 
    526 S.W.3d 471
    , 485 (Tex. 2017) (footnotes and
    quotations omitted). Here, it was not established as a matter of law that PILOT acted
    15
    inconsistently with its claim that Subsea failed to timely renew the sublease. See Ulico
    Cas. 
    Co., 262 S.W.3d at 778
    . It is undisputed that, although PILOT did not advise Subsea
    or PISBND that it considered Subsea a holdover tenant after May 31, 2012, it also never
    advised those entities that the sublease had been renewed.                      Further, according to
    Brown’s testimony, the rent payments that it accepted from Subsea after expiration of the
    initial term were in the amount prescribed for a holdover tenant, not for a tenant which
    had effectively renewed the sublease.7 It was also not established as a matter of law that
    PILOT intentionally acted inconsistently with the right it now seeks to enforce. See Ulico
    Cas. 
    Co., 262 S.W.3d at 778
    .              Subsea contends that PILOT’s acceptance of rent
    payments after the initial sublease term is evidence that it intended to waive its right to
    timely notice of renewal. That may be so, but the jury was free to decline to make that
    inference. See City of 
    Keller, 168 S.W.3d at 819
    , 822.
    The cases cited by Subsea are distinguishable or inapposite. Burke was an
    interlocutory appeal of a temporary injunction and, as such, the court did not address the
    ultimate merits of the waiver question. See 
    Burke, 189 S.W.2d at 444
    , 447 (noting that
    “we do not pass upon the merits of the case”). Instead, it held that the injunction was
    proper because the evidence was “sufficient” to support the lessees’ claims, and therefore
    “there was at least a bona fide dispute” concerning whether a sublessee was entitled to
    possession. 
    Id. In Winslow,
    the court’s succinct analysis focused entirely on the question
    of whether the lease’s “nonwaiver clause” precluded the landlord’s waiver, not whether
    the facts of the case amounted to waiver in the first place. See 
    Winslow, 849 S.W.2d at 7
     Subsea argues that, under the sublease agreement, PILOT was entitled (though it was not
    required) to demand increased rent payments after the initial term regardless of whether it considered the
    sublease to be validly renewed. However, Subsea does not dispute that PILOT’s decision not to demand
    a rent increase after May 31, 2012, is consistent with its position that Subsea was a holdover tenant as of
    that date.
    16
    864.
    For the foregoing reasons, we conclude that Subsea failed to establish its
    affirmative defenses, including waiver, as a matter of law.                 Subsea’s first issue is
    overruled.
    B.      Evidence of Trespass Damages
    By its second issue, Subsea argues that there was legally insufficient evidence to
    support the jury’s award of trespass damages. The jury was instructed to determine
    PILOT’s trespass damages by figuring “[t]he difference between the rent paid by [Subsea]
    and the fair market rental value of the premises during the period from June 1, 2014 to
    December 31, 2016.” The jury awarded $634,710, thereby indicating that it found the
    property at issue had a fair market rental value of $1,500 per acre per month. 8 Subsea
    contends that the only evidence of the fair market rental value of the sublease property
    was Brown’s testimony, and it argues that his testimony in this regard was incompetent
    and unreliable.
    A legal sufficiency challenge will be sustained only if the record shows (1) a
    complete absence of evidence of a vital fact, (2) the court is barred by the rules of law or
    evidence from giving weight to the only evidence offered to prove a vital fact, (3) the
    evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
    conclusively establishes the opposite of a vital fact. City of 
    Keller, 168 S.W.3d at 810
    .
    Evidence is more than a scintilla if it “rises to a level that would enable reasonable and
    fair-minded people to differ in their conclusions.” Serv. Corp. Int’l v. Guerra, 
    348 S.W.3d 8
     It is undisputed that Subsea made $620,000 in rent payments for the thirty-one months between
    June 2014 and December 2016. The jury therefore implicitly found that the fair market rental value of the
    property over that time period was $1,254,710 ($620,000 plus $634,710). That amount, divided by thirty-
    one months and again divided by 26.983 acres (the undisputed size of the sublease premises), results in a
    figure of $1,500 per acre per month.
    17
    221, 228 (Tex. 2011). Evidence is less than a scintilla is if it is “so weak as to do no more
    than create a mere surmise or suspicion that the fact exists.” Regal Fin. Co. v. Tex Star
    Motors, Inc., 
    355 S.W.3d 595
    , 603 (Tex. 2010). The ultimate test is whether the evidence
    would enable reasonable and fair-minded people to make the finding. City of 
    Keller, 168 S.W.3d at 827
    . As with our review of the evidence supporting Subsea’s affirmative
    defenses, we view the evidence in the light most favorable to the jury’s finding, and we
    defer to its credibility determinations. 
    Id. at 819,
    822.
    “The rental value of a property must be established with reasonable certainty.” City
    of Austin v. Teague, 
    570 S.W.2d 389
    , 395 (Tex. 1978); Wood v. Kennedy, 
    473 S.W.3d 329
    , 336 (Tex. App.—Houston [14th Dist.] 2014, no pet.). “A property owner may testify
    to the value of his property,” even if the owner “could not qualify to testify about the value
    of like property belonging to someone else.” Nat. Gas Pipeline Co. of Am. v. Justiss, 
    397 S.W.3d 150
    , 155 (Tex. 2012); Porras v. Craig, 
    675 S.W.2d 503
    , 504 (Tex. 1984). But
    “[i]n order for a property owner to qualify as a witness to the damages to his property, his
    testimony must show that it refers to market, rather than intrinsic or some other value of
    the property.” 
    Porras, 675 S.W.2d at 504
    –05 (noting that “[t]his requirement is usually
    met by asking the witness if he is familiar with the market value of his property”). When
    the evidence does not indicate the factual basis behind the owner’s valuation, the
    testimony is conclusory and will be legally insufficient to sustain a judgment. See 
    Justiss, 397 S.W.3d at 158
    –59, 161; 
    Wood, 473 S.W.3d at 338
    .
    Subsea first contends that Brown was not qualified to provide expert testimony as
    to the fair market rental value of the property. Citing Justiss, it argues that “[b]ecause a
    property owner’s testimony is the functional equivalent of expert testimony, it must be
    judged by the same standards.” It then contends that Brown’s “general experience as an
    18
    investor in oil and gas related companies does not give him the qualifications and
    experience required to testify as an expert concerning the fair market value of 27 acres
    of raw land with a dock.”
    We disagree that Brown was required to qualify as an expert witness in order to
    testify regarding the fair market value of the property. As the Justiss Court explained,
    “[t]he Property Owner Rule falls under Texas Rule of Evidence 701, which allows a lay
    witness to provide opinion testimony if it is (a) rationally based on the witness’s perception
    and (b) helpful to a clear understanding of the witness’s testimony or the determination of
    a fact in issue.” 
    Justiss, 397 S.W.3d at 157
    (emphasis added) (citing TEX. R. EVID. 701;
    Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 
    337 S.W.3d 846
    , 852
    (Tex. 2011)). “Based on the presumption that an owner is familiar with his property and
    its value, the Property Owner Rule is an exception to the requirement that a witness must
    otherwise establish his qualifications to express an opinion on land values.” 
    Id. Under the
    Property Owner Rule, an owner’s valuation testimony “fulfills the same role that expert
    testimony does”; however, that testimony is “based on personal knowledge rather than
    merely on expertise.” 
    Id. at 157
    & n.7. Accordingly, while valuation testimony “may not
    be based solely on a property owner’s ipse dixit,” the Property Owner Rule establishes
    that an owner is automatically qualified to provide such testimony. See 
    id. at 156,
    159.9
    Subsea next argues that Brown’s testimony was unreliable because it is
    “speculative, devoid of foundational support, and based on a faulty, patch-work, and
    unverifiable methodology.” Brown’s testimony regarding the fair market rental value of
    the property was based in part on his estimate that Subsea spent $14,134,508 to
    9 Though PILOT is technically a lessee and not an outright owner of the subject property, Subsea
    does not dispute that Brown is an owner for purposes of the Property Owner Rule.
    19
    construct a dock on the sublease premises in 2008. He testified that, as a finance and
    business major in college, he learned that there are
    a couple of different techniques for looking at the value of properties or in
    calculating the value of a property or the income of a property, you have
    got—you look at other sales of businesses or properties that are called
    comparables. You look at the cost of an asset, whether that’s real estate or
    any kind of business asset, and then you look at a rate of return of income
    that you would want to make on that asset. Those are a couple of examples.
    Brown later testified:
    Q. [PILOT’s counsel] Is one of the acceptable methods for determining a
    value for rental that you learned about and
    discussed earlier, return on investment model?
    A. [Brown]             Yes.
    Q.                     Have you, using that capital improvement [of the
    dock], determined a value for what a reasonable
    rental would be?
    A.                     Yes, at an 11 percent rate of return, the monthly
    rental there would be $129,566 per month.
    On cross-examination, Brown acknowledged that he did not consider, in making his
    estimate, the amount PILOT was paying to PISBND to rent the subject premises, which
    was around $500 per acre per month, or the amount PILOT was paying to PISBND to
    rent other adjacent property, which was around $800 per acre per month. Instead, he
    looked at two comparable properties: a spoolbase facility in Mississippi operated by
    another undersea pipeline company; and other property in Port Isabel, adjacent to the
    subject property, for which PILOT received rental payments.
    PILOT argues in response that, even if Brown’s testimony was speculative or
    unreliable, there was other evidence on which the jury could have based its finding.
    Specifically, PILOT points to the testimony of Bryan Duffy, a commercial real estate
    appraisal expert retained by Subsea to “do some market research.” Duffy testified that
    20
    he did not do an appraisal of the sublease premises, but if he did, he would consider
    amounts PILOT was paying to rent adjacent dock property because “[t]hat would be a
    comparable property.” Duffy opined that Brown’s methodology for determining the fair
    market rental value was “incomplete” and “insupportable” in part because Brown did not
    examine “what is being paid for other properties.”              Though he did not perform an
    appraisal, Duffy did “look into what the other ports in the Valley are charging and how
    they price their dock plan,” and from this information he determined that the rental values
    for properties in the PISBND ranged “from $800 per acre per month to $1,500 per acre
    per month.” Additionally, Bearden had told Duffy that PISBND leases dock property for
    rental fees in that range.
    We conclude that Duffy’s testimony constitutes more than a scintilla of probative,
    competent evidence supporting the jury’s damages award.10 Subsea notes that Duffy
    was not asked to perform an appraisal, and he did not specifically state that his estimate
    represented the “fair market rental value” of the sublease premises.                  But the clear
    implication of Duffy’s testimony was that, because similar properties were being leased
    for $800 to $1,500 per acre per month, that was a fair market price for the sublease
    premises. And the jury has discretion to award damages within the range of evidence
    presented at trial. Gulf States Utils. Co. v. Low, 
    79 S.W.3d 561
    , 566 (Tex. 2002).
    The evidence was legally sufficient to support the damages award, regardless of
    whether Brown’s valuation testimony is considered probative. Subsea’s second issue is
    overruled.
    10 We observe that, though the jury’s damages award was at the high end of Duffy’s estimate, it
    was far less than the roughly $4,200 per acre per month that Brown testified to, and it was minuscule
    compared to the amount PILOT claimed to be entitled to in its live pleading.
    21
    C.     Prejudgment Interest
    By its third issue, Subsea contends the trial court erred in its award of prejudgment
    interest in the amount of $80,425.58 to PILOT. “Prejudgment interest is compensation
    allowed by law as additional damages for lost use of the money due as damages during
    the lapse of time between the accrual of the claim and the date of judgment.” Ventling v.
    Johnson, 
    466 S.W.3d 143
    , 153 (Tex. 2015) (citing Johnson & Higgins of Tex., Inc. v.
    Kenneco Energy, Inc., 
    962 S.W.2d 507
    , 528 (Tex. 1998)). “There are two legal sources
    for an award of prejudgment interest: (1) general principles of equity and (2) an enabling
    statute.” Johnson & 
    Higgins, 962 S.W.2d at 528
    . We review a trial court’s award of
    prejudgment interest under an abuse of discretion standard. Johnson v. Ventling, 
    462 S.W.3d 92
    , 97 (Tex. App.—Corpus Christi–Edinburg 2013), rev’d in part on other
    grounds, 
    466 S.W.3d 143
    .
    The award of prejudgment interest in this case was calculated by applying a simple
    interest rate of five percent to the total damages award of $634,710, beginning on the day
    PILOT filed suit—June 1, 2014—and ending on the day before the final judgment was
    rendered—December 12, 2016. See Johnson & 
    Higgins, 962 S.W.2d at 531
    (“[U]nder
    the common law, prejudgment interest begins to accrue on the earlier of (1) 180 days
    after the date a defendant receives written notice of a claim or (2) the date suit is filed.”);
    see also TEX. FIN. CODE ANN. § 304.104 (providing that, in certain cases, prejudgment
    interest begins to accrue “on the earlier of the 180th day after the date the defendant
    receives written notice of a claim or the date the suit is filed”). Subsea notes, though, that
    the damages award encompassed the fair market value of rental payments that were due
    each month from June 2014 to December 2016. It argues that “PILOT is not entitled to
    prejudgment interest beginning on June 1, 2014 for rent that did not accrue” until well
    22
    after that date.
    Subsea cites Garden Ridge, L.P. v. Clear Lake Center, L.P., 
    504 S.W.3d 428
    (Tex.
    App.—Houston [14th Dist.] 2016, no pet.), and Roberson v. Robinson, 
    761 S.W.2d 51
    ,
    54 (Tex. App.—San Antonio 1988), rev’d on other grounds, 
    768 S.W.2d 280
    (Tex. 1989).
    In Garden Ridge, a tenant claimed its landlord breached the lease by overcharging it for
    common area maintenance 
    costs. 504 S.W.3d at 433
    . The jury found in the tenant’s
    favor and awarded damages which included amounts paid by the tenant after suit was
    filed. 
    Id. at 434.
    The Fourteenth Court of Appeals held that the tenant was entitled only
    to prejudgment interest “accruing on a monthly basis for each post-suit breach,” as it
    requested at oral argument. 
    Id. at 452–53.
    The court noted that the tenant “has not
    argued in this court nor the trial court that its post-suit claims accruing after September
    10, 2009,” the date suit was filed, “should begin to earn interest on September 10, 2009.”
    
    Id. at 453.
    The court attached a recalculated interest schedule as an exhibit to its opinion.
    See 
    id. at 453–55.
    In Roberson, a landlord was awarded “accrued and unpaid rent of $200.00 per
    month from January 1, 1981, through April 30, 1982” and “[t]he reasonable rental value
    of the leasehold from May 1, 1982, through February 15, 1986,” for a total of $66,900 in
    
    damages. 761 S.W.2d at 52
    . The trial court awarded prejudgment interest on the entire
    amount, to accrue “from January 1, 1981, until the date of judgment . . . .” 
    Id. The San
    Antonio Court of Appeals found that the interest award was erroneous, holding that
    interest “for the loss of rental value fixed upon a monthly basis” is “simple interest at the
    rate of 6% per annum on each monthly rental commencing thirty (30) days from the time
    each rental payment was due and payable up to the date of the judgment rather than as
    assessed by the trial court.” 
    Id. at 53–54.
    23
    Responding to this issue, PILOT does not dispute that at least part of the $634,710
    damages award was attributable to rental periods for which payment became due after
    June 1, 2014. Instead, it disputes the notion that the lump sum amount awarded by the
    jury was attributable equally to each of those rental periods. PILOT argues that it is
    improper to simply take the lump sum figure and divide it by the number of months to
    come up with a monthly average because that “assumes that the jury did not find the fair
    market rental value fluctuated a single penny during this period of time.” PILOT also cites
    the Texas Supreme Court’s opinion in Johnson & 
    Higgins, 962 S.W.2d at 531
    , for the
    proposition that “prejudgment interest on a trespass claim, as here, begins to accrue on
    the date set forth in the final judgment submitted by Plaintiff and signed by the Court.”
    But Johnson & Higgins was not a trespass case and did not involve any amount of
    damages accruing after the date suit was filed. And PILOT directs us to no evidence
    upon which the jury could have reasonably concluded that the fair market rental value of
    the sublease premises fluctuated at all between June 1, 2014 and December 12, 2016.
    It does not dispute that the jury’s award was based exclusively on testimony, such as
    Brown’s and Duffy’s, which presumed the rental value was the same for each month for
    which damages were claimed.
    Resolution of this issue requires us to determine whether prejudgment interest was
    awarded in this case on the basis of equity or statute, a question Subsea does not
    explicitly address. Section 304.104 of the finance code, which both parties cite, requires
    prejudgment interest to begin accruing “on the earlier of the 180th day after the date the
    defendant receives written notice of a claim or the date the suit is filed,” but that statute
    applies only to “a wrongful death, personal injury, or property damage case.” See TEX.
    FIN. CODE ANN. §§ 304.101, .104. This is not such a case, and the parties cite no other
    24
    statutory basis for the award of prejudgment interest. Accordingly, we conclude the award
    was based on common law principles of equity.                   In Johnson & Higgins, the Texas
    Supreme Court explained that equitable prejudgment interest, like the statutory variety,
    “begins to accrue on the earlier of (1) 180 days after the date a defendant receives written
    notice of a claim or (2) the date suit is 
    filed.” 962 S.W.2d at 531
    . However, as noted,
    none of the damages awarded in Johnson & Higgins were attributable to events, such as
    the monthly post-suit accrual of rent payments, that occurred after suit was filed. We
    therefore decline to construe Johnson & Higgins as establishing an inflexible rule
    requiring the accrual of prejudgment interest on all damages, no matter when incurred, to
    start at the time suit is filed. Rather, we conclude that the trial court abused its discretion
    by ordering prejudgment interest to begin accruing on June 1, 2014, for damages
    attributable to rental payments which became due after that date. Instead, to conform
    with principles of equity, interest must begin “accruing on a monthly basis for each post-
    suit breach.” See Garden Ridge, 
    L.P., 504 S.W.3d at 45311
    ; 
    Roberson, 761 S.W.2d at 54
    ; see also Johnson & 
    Higgins, 962 S.W.2d at 528
    (noting that prejudgment interest, by
    definition, accrues only “during the lapse of time between the accrual of the claim and the
    date of judgment”).
    Subsea’s third issue is sustained.
    11  PILOT notes correctly that the Garden Ridge court ordered “interest accruing on a monthly basis
    for each post-suit breach” only because that is what the plaintiff requested at oral argument. Garden Ridge,
    L.P. v. Clear Lake Center, L.P., 
    504 S.W.3d 428
    , 453 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The
    court cited case law establishing that it “may not award more relief than requested.” 
    Id. PILOT did
    not
    similarly limit its request. Therefore, Garden Ridge is not directly on point.
    Notwithstanding the dearth of direct authority, it is apparent that the method used for calculating
    prejudgment interest in Garden Ridge is appropriate here. As noted, the purpose of prejudgment interest
    is to compensate a claimant for “lost use of the money due as damages during the lapse of time between
    the accrual of the claim and the date of judgment.” Ventling v. Johnson, 
    466 S.W.3d 143
    , 153 (Tex. 2015)
    (emphasis added). Therefore, equitable prejudgment interest may not be awarded on damages amounts
    which have not yet accrued.
    25
    III. PILOT’S CROSS-ISSUES
    A.     Attorney’s Fees and Costs
    PILOT raises six cross-issues concerning the trial court’s refusal to award it
    attorney’s fees and court costs. Specifically, it argues: (1) it was error to deny fees and
    costs; (2) PILOT was entitled to fees under the language of the sublease; (3) Subsea was
    estopped from arguing PILOT was not entitled to fees and costs; (4) Subsea judicially
    admitted fees were available under the sublease; (5) Subsea [sic] is entitled to fees under
    the Uniform Declaratory Judgments Act (UDJA); and (6) PILOT was entitled to court costs
    under the language of the sublease.
    The sublease agreement contained a section entitled “XXVI. Arbitration” which
    stated in its entirety as follows:
    A.
    ONLY IN THE CASE OF ANY DISPUTE, CONTROVERSY OR CLAIM
    ARISING UNDER OR RELATING TO THIS SUBLEASE AND INVOLVING
    [PISBND], OR THE BREACH, TERMINATION OR INVALIDITY
    THEREFOF AS IT PERTAINS TO [PISBND], SHALL A DISPUTE UNDER
    THIS SUBLEASE BE SETTLED BY ARBITRATION, IN WHICH EVENT
    SUCH ARBITRATION SHALL BE IN ACCORDANCE WITH THE
    FEDERAL ARBITRATION ACT, AND THE COMMERCIAL ARBITRATION
    RULES OF THE AMERICAN ARBITRATION ASSOCATION (THIS DOES
    NOT REQUIRE THE USE OF SUCH ASSOCIATION, AND SUCH RULES
    ARE ONLY PROCEDURES FOR THE ARBITRATION), USING ONE
    ARBITRATOR, TO BE SELECTED BY AGREEMENT OF THE PARTIES
    — SUCH ARBITRATION TO BE CONDUCTED IN BROWNSVILLE,
    CAMERON COUNTY, TEXAS, IN THE ENGLISH LANGUAGE — AND A
    JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR
    MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
    B.
    If any such proceeding is initiated to resolve a dispute arising under or
    relating to this Sublease by any of the parties hereto, it is expressly agreed
    that the prevailing party shall be entitled to recover from the other party
    reasonable attorney’s fees and expenses, in addition to any other relief that
    may be awarded.
    26
    PILOT contends that the phrase “any such proceeding,” in paragraph XXVI.B above,
    refers to any effort to resolve a dispute under the sublease, not just arbitration. It posits
    that the definition of “proceeding” must encompass more than just arbitration because
    paragraph XXVI.A never refers to the contemplated arbitration as a “proceeding.”
    According to PILOT, if the parties had intended paragraph XXVI.B to apply only to
    arbitration filed under paragraph XXVI.A, they would have used the terms “arbitration” or
    “such arbitration” rather than “such proceeding.”          PILOT concedes, though, that
    paragraph XXVI.A “is irrelevant with regard to this case because it only applies to and
    only requires arbitration” in a “DISPUTE, CONTROVERSY OR CLAIM . . . . INVOLVING
    [PISBND],” which the instant suit did not.
    We disagree with PILOT’s interpretation of this contractual provision. PILOT is
    correct that the phrase “any such proceeding” in paragraph XXVI.B means more than just
    arbitration, but that is because the preceding paragraph contemplated more than just an
    arbitration proceeding—it also contemplated a proceeding in a court of law to obtain a
    judgment memorializing the arbitration award. PILOT’s construction of the phrase “any
    such proceeding” ignores the word “such,” the presence of which clearly indicates that
    the parties intended to refer back to the two types of proceedings mentioned in the prior
    paragraph. Indeed, if the parties truly intended for paragraph XXVI.B to apply to any and
    all efforts to resolve a dispute under the sublease, no matter the forum, they could have
    easily done so by omitting the word “such.” See DIRECTV Grp., Inc. v. United States,
    
    670 F.3d 1370
    , 1381 (Fed. Cir. 2012) (“As a matter of elementary grammar, the statute’s
    use of ‘such’ is a demonstrative adjective, and it must refer to a clear antecedent.”); United
    States v. Krstic, 
    558 F.3d 1010
    , 1013 (9th Cir. 2009) (noting that, when the word “such”
    is used as a demonstrative adjective, it is defined as “of the type previously mentioned”);
    27
    see also Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 
    550 U.S. 81
    , 94 (2007) (holding
    that, in the statutory phrase “with per-pupil expenditures . . . above the 95th percentile or
    below the 5th percentile of such expenditures in the State,” “[t]he word ‘such’ refers to
    ‘per-pupil expenditures’”).
    PILOT contends that Subsea judicially admitted, and is judicially estopped from
    denying, that PILOT was entitled to fees and costs under paragraph XXVI.B of the
    sublease because Subsea requested fees under that same paragraph in its live pleading.
    The doctrine of judicial estoppel precludes a party from adopting a position inconsistent
    with one that it maintained successfully in an earlier proceeding.          Pleasant Glade
    Assembly of God v. Schubert, 
    264 S.W.3d 1
    , 6 (Tex. 2008); Patel v. Harris Cty. Appraisal
    Dist., 
    434 S.W.3d 803
    , 814 (Tex. App.—Houston [14th Dist.] 2014, no pet.). But the
    doctrine does not apply to a contradictory position taken in the same proceeding.
    Pleasant Glade Assembly of 
    God, 264 S.W.3d at 6
    . And though “[c]ontradictory positions
    taken in the same proceeding may raise issues of judicial admission,” 
    id., “[a] party
    may
    not judicially admit a question of law.” H.E. Butt Grocery Co. v. Pais, 
    955 S.W.2d 384
    ,
    389 (Tex. App.—San Antonio 1997, no pet.); Pierce v. Pierce, 
    850 S.W.2d 675
    , 679 (Tex.
    App.—El Paso 1993, writ denied); Ft. Bend Cent. Appraisal Dist. v. Hines Wholesale
    Nurseries, 
    844 S.W.2d 857
    , 858 (Tex. App.—Texarkana 1992, writ denied). Because the
    issue of whether paragraph XXVI.B of the sublease agreement authorized fees is a
    question of law, it is not subject to judicial admission. See URI, Inc. v. Kleberg County,
    
    543 S.W.3d 755
    , 763 (Tex. 2018) (noting that the “interpretation of an unambiguous
    contract” is a question of law reviewed de novo).
    PILOT next argues that it was entitled to attorney’s fees under the UDJA. See
    TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (“In any proceeding under this chapter, the
    28
    court may award costs and reasonable and necessary attorney’s fees as are equitable
    and just.”). But as the Texas Supreme Court has explained, “simply repleading a claim
    as one for a declaratory judgment cannot serve as a basis for attorney’s fees, since such
    a maneuver would abolish the American Rule and make fees available for all parties in
    all cases.” Etan Indus., Inc. v. Lehmann, 
    359 S.W.3d 620
    , 624 (Tex. 2011) (citing MBM
    Fin. Corp. v. Woodlands Operating Co., 
    292 S.W.3d 660
    , 669 (Tex. 2009)).
    When a claim for declaratory relief is merely tacked onto statutory or
    common-law claims that do not permit fees, allowing the UDJA to serve as
    a basis for fees would violate the rule that specific provisions should prevail
    over general ones. The declaratory judgment claim must do more than
    merely duplicate the issues litigated via the contract or tort claims.
    
    Id. (quotations and
    citation omitted). PILOT points out that the elements of a trespass
    cause of action differ from those it asserted as part of its request for declaratory relief.
    However, we conclude that the trial court did not abuse its discretion by implicitly finding
    that PILOT’s UDJA claims were duplicative of and subordinate to its trespass claim. See
    Oake v. Collin County, 
    692 S.W.2d 454
    , 455 (Tex. 1985) (noting that the denial of
    attorney’s fees under the UDJA is reviewed for abuse of discretion).
    Finally, PILOT argues that the trial court failed to articulate any good cause for
    failing to award costs under Texas Rules of Civil Procedure 131. See TEX. R. CIV. P. 131
    (“The successful party to a suit shall recover of his adversary all costs incurred therein,
    except where otherwise provided.”); see also TEX. R. CIV. P. 141 (“The court may, for
    good cause, to be stated on the record, adjudge the costs otherwise than as provided by
    law or these rules.”). But as Subsea notes, although the jury found in favor of PILOT, its
    award of damages did not even approach the amount requested by PILOT in its
    pleadings, and Subsea successfully obtained a provision in the final judgment allowing
    Subsea to remove its improvements from the property, over PILOT’s objection. Under
    29
    these circumstances, the trial court was within its discretion to order that the parties bear
    their own court costs. See Henry v. Masson, 
    453 S.W.3d 43
    , 50 (Tex. App.—Houston
    [1st Dist.] 2014, no pet.) (noting that an appellate court reviews a trial court’s decision to
    award court costs for abuse of discretion).
    We conclude that PILOT was not entitled to attorney’s fees and court costs under
    the terms of the sublease, and the trial court did not err in refusing to award fees under
    the UDJA. PILOT’s cross-issues regarding fees and costs are overruled.
    B.     Removal of Improvements
    PILOT’s five remaining issues on cross-appeal concern the portion of the final
    judgment permitting Subsea to remove its property and improvements from the sublease
    premises within thirty days of the judgment. PILOT argues: (1) it was error to allow
    Subsea to remove property and improvements; (2) the plain language of the sublease
    required Subsea to remove its improvements in 2014 upon service of the notice to vacate;
    (3) Subsea waived its right to remove improvements; (4) Subsea failed to obtain written
    consent from PISBND under the sublease; and (5) Subsea failed to comply with certain
    provisions of the Texas Property Code, resulting in the “loss” of the improvements.
    PILOT bases these issues on paragraph V.J of the sublease agreement, which is
    contained within a section entitled “Leasehold Operation,” and which provides as follows:
    [Subsea] also agrees that, upon termination of this Sublease, [Subsea] shall
    have the option to either (i) leave the Sublease Premises in the condition
    that the Sublease Premises are in at the conclusion of the Sublease, or (ii)
    remove any or all property and improvements then located on the Sublease
    Premises, provided that [Subsea] shall be responsible for any costs or
    expense to repair any physical damage to the Sublease Premises caused
    by such removal, and further provided [Subsea] shall not be entitled to
    remove “[Subsea]’s Dock” (hereinafter defined).
    Notwithstanding the foregoing, [PILOT] acknowledges that [Subsea]
    intends to add crushed rock to the Sublease Premises that may or may not
    be removed upon termination of this Sublease, at [Subsea]’s option.
    30
    According to PILOT, because the jury determined that the sublease in fact terminated on
    May 31, 2014, Subsea’s option to remove its property from the premises under paragraph
    V.J also terminated on that date. PILOT argues that, because Subsea did not remove its
    improvements at that time, it implicitly declined its option to do so under paragraph V.J of
    the sublease; and by failing to do so for two years after the initial lease term, it waived its
    right to remove improvements at all. It cites case law establishing that “in the absence of
    equities an optionee is held to a strict compliance with the terms of the option agreement.”
    Zeidman v. Davis, 
    342 S.W.2d 555
    , 558 (Tex. 1961).
    In response, Subsea notes that, prior to trial, the trial court granted a motion in
    limine which sought to exclude any testimony regarding PILOT’s damages that presumed
    that the improvements would remain on the premises. It also notes that the trial court
    rejected PILOT’s request for a jury charge question asking whether Subsea elected to
    leave its property and improvements on the premises under paragraph V.J. Subsea
    observes that PILOT challenges neither the order in limine nor the jury charge ruling on
    cross-appeal.
    After trial, the court must render a judgment that “conform[s] to the pleadings, the
    nature of the case proved and the verdict, if any,” and is “so framed as to give the party
    all the relief to which he may be entitled either in law or equity.” TEX. R. CIV. P. 301. Here,
    even assuming that the property removal provisions of the sublease agreement may be
    properly characterized as an “option agreement,” we cannot say that the trial court erred
    in allowing Subsea to retrieve its property within thirty days of the judgment. First, though
    paragraph V.J of the sublease agreement provides that Subsea may elect whether to
    leave the premises as-is or to remove the property and improvements, it does not
    explicitly provide a timeframe for when this election would be made except to say that the
    31
    option would come into effect “upon termination of this Sublease.” Arguably, then, even
    if Subsea waited until after the final judgment to elect to remove the improvements, that
    would be permissible under paragraph V.J. Second, Subsea has always maintained that
    the lease did not terminate on May 31, 2014, but instead was effectively renewed. This
    was the central issue at trial and, although the jury eventually found against Subsea on
    this issue, it would have been inequitable in these circumstances for the trial court to
    render judgment precluding Subsea from recovering its property. See 
    Zeidman, 342 S.W.2d at 558
    .
    Because Subsea consistently asserted that the sublease had not terminated, we
    conclude that Subsea did not intentionally waive its right to retrieve its property and
    improvements from the sublease premises. See Ulico Cas. 
    Co., 262 S.W.3d at 778
    (elements of waiver).
    PILOT additionally argues that the subject provision of the final judgment was
    improper because there was no evidence that Subsea obtained written consent from
    PISBND to build certain improvements on the premises, as required by the sublease.12
    We disagree. PILOT first raised this argument in a motion to modify the final judgment;
    it did not do so in its pleadings or at trial and the issue was not tried by consent.
    Accordingly, had the trial court rendered judgment based in any part on this argument, it
    would have violated the rule requiring judgments to conform to the pleadings. See TEX.
    R. CIV. P. 301; see also Mapco, Inc. v. Carter, 
    817 S.W.2d 686
    , 688 (Tex. 1991) (per
    12   Paragraph V.E of the sublease agreement provided in part:
    [Subsea] acknowledges that no alterations, additions or improvements shall be made on
    or to the Sublease Premises, on the land, or along the channels, without the consent of
    [PISBND] in writing, based on building, fire, setback, electric and health codes or standards
    adopted by [PISBND]. . . . All alterations, additions and improvements made by [Subsea]
    without such consent shall, unless [PILOT] elects otherwise, belong to [PILOT] (subject to
    the terms of the PRIME LEASES), at [Subsea]’s expense.
    32
    curiam) (holding judgment was improper where no pleadings or evidence supported the
    theory of recovery on which the judgment was based); Bhatia v. Woodlands N. Hous.
    Heart Ctr., PLLC, 
    396 S.W.3d 658
    , 664 (Tex. App.—Houston [14th Dist.] 2013, pet.
    denied) (“We cannot reverse the trial court’s judgment based on a theory of recovery not
    pleaded and proven below.”).
    Finally, PILOT contends the property removal provision was improper under Texas
    Property Code § 22.021, entitled “Plea for Removal of Improvements,” which states in its
    entirety as follows:
    (a)    A defendant in a trespass to try title action who is not the rightful
    owner of the property in controversy may remove improvements
    made to the property if:
    (1)      the defendant, and those under whom the defendant claims,
    possessed the property, and made permanent and valuable
    improvements to it, without intent to defraud; and
    (2)      the improvements can be removed without substantial and
    permanent damage to the property.
    (b)    The pleadings of a defendant who seeks to remove improvements
    must contain:
    (1)      a statement that the defendant, and those under whom the
    defendant claims, adversely possessed the property, and
    made permanent and valuable improvements to it, without
    intent to defraud;
    (2)      a statement identifying the improvements; and
    (3)      an offer to provide a surety bond in an amount and
    conditioned as required by this section.
    (c)    Before removing the improvements, the defendant must post a
    surety bond in an amount determined by the court, conditioned on
    the removal of the improvements in a manner that substantially
    restores the property to the condition it was in before the
    improvements were made.
    TEX. PROP. CODE ANN. § 22.041. It is undisputed that Subsea did not plead the specific
    information required by this statute. However, § 22.045 of the property code states that
    33
    “[t]he remedy of removing improvements may be pleaded as an alternative to all other
    remedies at law or in equity.” 
    Id. § 22.045.
    Here, the trial court’s decision to include in
    the final judgment a provision allowing Subsea to remove its improvements was based
    on the terms of the sublease agreement, not § 22.041 of the property code. Therefore,
    Subsea’s failure to plead the specific information required by this statute does not render
    the judgment’s property removal provision erroneous or improper.
    PILOT’s issues in this regard are overruled.
    IV. CONCLUSION
    We reverse the trial court’s award of prejudgment interest and remand for
    recalculation consistent with this opinion. The remainder of the judgment is affirmed.
    DORI CONTRERAS
    Chief Justice
    Delivered and filed the
    19th day of December, 2019.
    34