Lakepointe Pharmacy 2, LLC, Raymond Amaechi and Valerie Amaechi v. Forney Deerval, LLC and Forney Willetta, LLC ( 2021 )

AFFIRMED and Opinion Filed January 26, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01224-CV
LAKEPOINTE PHARMACY #2, LLC, RAYMOND AMAECHI
AND VALERIE AMAECHI, Appellants
V.
FORNEY DEERVAL, LLC AND FORNEY WILLETTA, LLC, Appellees
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 90632-422
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Osborne
In this landlord/tenant dispute, the trial court rendered judgment for
plaintiffs/landlords Forney Deerval, LLC and Forney Willetta, LLC after a bench
trial. In four issues, Lakepointe Pharmacy #2, LLC, Raymond Amaechi, and Valerie
Amaechi, the tenant and lease guarantors, contend the trial court erred by admitting
certain evidence, rendering judgment for appellees when there was no evidence of
any amounts due under the lease, awarding attorney’s fees, and failing to render
judgment that appellees take nothing on their claims. We affirm the trial court’s
judgment.
BACKGROUND
The facts are well-known to the parties and we do not detail them here except
as necessary to explain the basic reasons for our decision. TEX. R. APP. P. 47.4.
Under an assignment dated July 15, 2011, appellant Lakepointe Pharmacy #2, LLC
(“Tenant”) leased premises in Kaufman County to be used as a pharmacy under a
2007 Medical Office Building Lease and amendments (“Lease”). Appellants
Raymond Amaechi and Valerie Amaechi were guarantors of Tenant’s obligations
under the Lease (“Guarantors”). On July 25, 2011, appellees Forney Deerval, LLC
and Forney Willetta, LLC (together, “Landlord”) succeeded to the prior landlord’s
rights under the Lease and guaranty. The parties agree that Tenant remained in the
premises until early February 2014.1 Landlord made repairs to the premises and
leased them to another tenant for some of the remaining Lease term, which ended on
November 30, 2018.
Under the Lease, Tenant was required to pay both “Base Rent” and
“Additional Rent,” including the “Tenant’s Proportionate Share” of “Excess
Operating Costs,” all defined terms. The primary dispute at trial and now on appeal
1
Although Tenant and Guarantors repeatedly state that they were “locked out” of the premises, there
was evidence offered at trial to support a finding that Tenant moved out and abandoned the premises without
notifying Landlord before Landlord changed the locks. We also note that under the Lease, Tenant expressly
waived “all rights and benefits of tenant” under sections 93.002 and 93.012 of the Texas Property Code.
See TEX. PROP. CODE ANN. § 93.002 (restrictions on interruption of utilities, removal of property, and
changing of locks by landlord, including tenant remedies, but “[a] lease supersedes this section to the extent
of any conflict”); Id. § 93.012 (landlord may not assess charge for rent or physical damage to premises
unless amount or method of calculation is stated in the lease).
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is whether Landlord offered sufficiently detailed, non-hearsay evidence of the
Excess Operating Costs.
The case proceeded to trial before the court in May, 2017. On June 20, 2019,
the trial court rendered judgment for the Landlord against Tenant in the following
amounts:
$293,332.36 representing unpaid amounts due under the lease through
the date it was terminated;
$22,750.00 representing the sum Plaintiffs [Landlord] paid for tenant
improvements as part of their efforts to re-let the subject premises;
$22,440.00 representing the sum Plaintiffs paid for leasing
commissions as part of their efforts to re-let the subject premises; and
$43,183.66 representing the difference between the present value of the
rent Defendant Lakepointe Pharmacy #2 LLC contracted to pay
Plaintiffs in the subject lease through the end of the stated lease term,
and the present value of the rent Plaintiffs will receive as the result of
their efforts to re-let the subject premises through the end of the stated
term of subject lease.
The trial court also awarded Landlord $381,706.02 in damages from Guarantors for
breach of the guaranty. The judgment includes awards of attorney’s fees for trial and
appeal against all defendants.
This appeal followed.
ISSUES AND STANDARDS OF REVIEW
In four issues, Tenant and Guarantors challenge the trial court’s evidentiary
rulings and the sufficiency of the evidence. Specifically, they argue the trial court
erred by (1) failing to exclude evidence of operating costs that lacked foundation;
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(2) rendering judgment for breach of contract when there was no or insufficient
evidence to support a finding that Tenant and Guarantors did not pay all money owed
under the Lease; (3) failing to grant a take-nothing judgment on Landlord’s claims;
and (4) awarding attorney’s fees “due to a lack of competent testimony by an expert
witness.”
The trial court did not file findings of fact and conclusions of law. We
therefore imply that the trial court made all the necessary findings to support its
judgment, and we may uphold the judgment on any legal theory supported by the
pleadings and evidence. Weisfeld v. Tex. Land Fin. Co., 162 S.W.3d 379, 381 (Tex.
App.—Dallas 2005, no pet.).
When a party attacks the legal sufficiency of an adverse finding on which it
did not have the burden of proof, the party must demonstrate on appeal that no
evidence supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261,
263 (Tex. 2014) (per curiam). We review the evidence in the light most favorable to
the appealed finding and indulge every reasonable inference that supports it. City of
Keller v. Wilson, 168 S.W.3d 802, 821–22, 827 (Tex. 2005). If the evidence admitted
at trial would enable reasonable and fair-minded people to differ in their conclusions,
then the fact finder must be allowed to do so, and we may not substitute our judgment
for that of the fact finder. Id. at 822.
When a party attacks the factual sufficiency of the evidence to support a
finding on which it did not have the burden of proof, we consider and weigh all the
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evidence both in support of and contrary to the challenged finding. Sunl Grp., Inc.
v. Zhejiang Yongkang Top Imp. & Exp. Co., Ltd., 394 S.W.3d 812, 817 (Tex. App.—
Dallas 2013, no pet.). We may set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id.In a bench trial, the trial judge, as fact finder, is the sole judge of the credibility
of the witnesses and the evidence. Weisfeld, 162 S.W.3d at 380. The judge may take
into consideration all the facts and surrounding circumstances in connection with the
testimony of each witness and accept or reject all or any part of that testimony. Id.at 380–81.
The admission or exclusion of evidence is reviewed under an abuse of
discretion standard. Estate of Finney, 424 S.W.3d 608, 612 (Tex. App.—Dallas
2013, no pet.). A judgment will not be reversed based on the admission or exclusion
of evidence unless the appellant establishes that (1) the trial court’s ruling was in
error and (2) the error was reasonably calculated to cause and probably did cause the
rendition of an improper judgment. Id. When reviewing whether evidence was
properly admitted or excluded, the appellate court must review the entire record. Id.We review the trial court’s decision to grant or deny attorney’s fees for an
abuse of discretion. Avila v. Larrea, 506 S.W.3d 490, 494 (Tex. App.—Dallas 2015,
pet. denied). “The fixing of a reasonable attorney’s fee is a matter within the sound
discretion of the trial court, and its judgment will not be reversed on appeal absent a
clear abuse of discretion.” Id. (internal quotation omitted). Legal and factual
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sufficiency of the evidence are not independent grounds under this standard of
review, but are relevant factors we may consider in assessing whether the trial court
abused its discretion. Halsey v. Halter, 486 S.W.3d 184, 187 (Tex. App.—Dallas
2016, no pet.). A trial court abuses its discretion if it acts without reference to guiding
rules and principles. Avila, 506 S.W.3d at 494.
DISCUSSION
I. Admission of evidence
In their first issue, Tenant and Guarantors argue the trial court erred by failing
to exclude “evidence of ‘Operating Costs’ and ‘Tenant’s Proportionate Share of
Excess Operating Costs’”2 because the documents offered “lacked the foundation
necessary to support admissibility of a data compilation or summary business
record.” Tenant and Guarantors argue this issue together with their second and third
issues, contending that without the improperly-admitted evidence, there was no or
insufficient evidence to support the trial court’s judgment.
Tenant and Guarantors contend the trial court erred by overruling their
objections to Landlord’s exhibits (“PX”) 29, 30, 31, 32, 35, 36, and 41. All but PX
41 are one-page operating expense reconciliations or estimates provided to Tenant
2
“Additional Rent,” “Excess Operating Costs,” and “Tenant’s Proportionate Share” are defined terms
in the Lease. In sum, the Lease provides that in addition to “Base Rent,” Tenant is required to pay a percent
of the costs of insurance, taxes, security, utilities, management and administrative costs, and other expenses
“which Landlord shall pay or become obligated to pay in respect to or in connection with the operation and
maintenance of the Building.”
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during the lease term. PX 41 is a detailed spreadsheet showing each debit and credit
made to Tenant’s account beginning on August 1, 2011 and ending on February 1,
2014. Tenant argues these exhibits lacked “underlying documents to support or
substantiate” the amounts identified as “Operating Cost,” “Electric Expense,” “CPI
adjustments,” and “Late Charges.” Tenant also contends that PX 41 “includes entries
that were never explained by any witness, or justified by any documentary
evidence.”
We first note that we construe appellants’ complaint to include the trial court’s
rulings on their objections to exhibits 42, 43, and 77 made at trial on the same
grounds—hearsay—as their objections to exhibit 41. All four of these exhibits are
accounting ledgers created with the same software. PX 77 contains much of the same
information as exhibit 41, but covers a longer period of time. PX 42 and 43 are “CM
Receivables Ledgers” that, as discussed below, also contain information specific to
Tenant’s account.
Landlord’s witness Charles Setzer testified about these exhibits. Setzer is a
CPA and a senior accountant for PMRG, the company used by Landlord for
management of the property. He testified that exhibits 41, 42, 43, and 77 are
accounting records from PMRG’s “MRI commercial management software” that
were made at or near the time by, or from information transmitted by, someone with
knowledge; the records were kept in the course of a regularly conducted business
activity; and making the records was a regular practice of that activity. See TEX. R.
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EVID. 803(6). In support, Setzer explained how tenant-specific information from a
lease is input into the MRI system and how property-specific invoices are reviewed,
scanned, paid, and posted to a general ledger by a property manager, then compiled
for review by the accounting department. Setzer reviewed batched invoices and cash
receipts before they were posted to a tenant’s account and entered into the MRI
system.
Janet Hetmer, Landlord’s property manager who communicated directly with
Tenant during the lease term, testified that in accordance with Landlord’s regular
practices, she kept a tenant file for Tenant and supplied information from it to the
accounting department at PMRG. Hetmer and Setzer explained that in accordance
with the Lease, Landlord calculated an annual estimate of “Additional Rent” items,
charged Tenant monthly according to the estimate, and then at year’s end performed
a reconciliation of Tenant’s actual share. Hetmer testified that estimates and
reconciliation statements were sent to Tenant each year and also were kept in
Landlord’s tenant files. Setzer explained that the amounts of base rent, energy costs,
and operating expenses were recorded on ledgers such as PX 41, 42, 43, and 77 in
the regular course of Landlord’s business at or near the time they were incurred, by
persons with knowledge of the information recorded.
Setzer testified that PMRG prepared CM reports like PX 42 and 43 on a
regular basis for its client, the real estate investment trust that owns the property.
CM reports show “the monthly activity of a tenant” and are included in the monthly
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“financial package” sent to the client. The “financial package” includes “monthly
reports with a balance sheet[,] income statement, . . . check registers, the accounts
receivable, aging report . . . and the CM receivables ledger that shows the monthly
activity, the cash in, the charges, that sort of thing.” Valerie Sarmento, the asset
manager for the building, testified about the monthly financial packages received
from PMRG that she reviewed in the regular course of business for inclusion in the
REIT’s federal securities filings and stockholder materials.
Setzer testified that “Occupant tenant ledgers” or “inquiry reports” like PX 41
and 77 show the transactions in a particular tenant’s account, including debits,
credits, and payments. They include the same information as the CM reports but in
a different format. These reports “would be used internally” to review or “to do a
reconciliation for the client or the tenant and go back and review all the transactions
that have occurred for a certain period of time.”
Hetmer testified about PX 29, 30, 31, 32, 35, and 36, the other exhibits Tenant
and Guarantors specifically challenge. These exhibits contain total amounts for, or
estimates of, Tenant’s proportionate share of operating costs for 2011 through 2014,
and Hetmer testified that they were prepared and sent to Tenant each year in the
ordinary course of Landlord’s business.
Citing Duncan Development, Inc. v. Haney, Tenant and Guarantors argue that
the challenged exhibits were inadmissible “summaries” because Landlord failed to
establish that (1) the records are voluminous, (2) the records were made available to
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Tenant and Guarantors “for a reasonable period of time to afford inspection and an
opportunity for cross-examination,” and (3) “the supporting documents are
themselves admissible in evidence.” Duncan Dev’t. Inc. v. Haney, 634 S.W.2d 811,
812–13 (Tex. 1982). This principle is now included in rule 1006, Texas Rules of
Evidence:
Rule 1006. Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot
be conveniently examined in court. The proponent must make the
originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may order
the proponent to produce them in court.
TEX. R. EVID. 1006.
Landlord replies that the challenged exhibits were not summaries of
voluminous records, but were instead records of a regularly conducted activity
admissible under evidence rule 803(6). That rule provides:
The following are not excluded by the rule against hearsay, regardless
of whether the declarant is available as a witness:
...
(6) Records of a Regularly Conducted Activity. A record of an act,
event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted
business activity;
(C) making the record was a regular practice of that activity;
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(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by an affidavit or
unsworn declaration that complies with Rule 902(10); and
(E) the opponent fails to demonstrate that the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness. “Business” as used in this
paragraph includes every kind of regular organized activity
whether conducted for profit or not.
TEX. R. EVID. 803(6).
In McAllen State Bank v. Linbeck Construction Corp., the court addressed the
distinction between summaries under Duncan Development, Inc. and business
records under rule 803(6):
However, Duncan Development, Inc. v. Haney dealt with a summary of
invoices from its “some three dozen subcontractors” that was
prepared for trial purposes; whereas, here, we are dealing with two
computer printout summary/breakdowns that, although each is a
summary of underlying business records (labor and materials records),
are themselves business records. Therefore, the computer printouts
were entitled to be treated as business records, and not as a summary of
business records for trial purposes.
695 S.W.2d 10, 16 (Tex. App.—Corpus Christi-Edinburg 1985, writ ref’d n.r.e.)
(emphasis added). Consequently, the court concluded the trial court did not err by
admitting into evidence computer printouts showing “an accounting
summary/breakdown of charges for work performed” by the general contractor in
the construction and repair of an office building. See id. at 16–17.
This Court considered a similar issue in Curran v. Unis, 711 S.W.2d 290,
292–96 (Tex. Civ. App.—Dallas 1986, no writ), concluding that a company’s
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income tax returns were admissible as business records “and not just as summaries
of business records”:
Here, the testimony was that the returns were prepared from the general
ledger cards—themselves admissible in evidence—reflecting daily
bookkeeping entries of the partnership. Spread sheets were then
prepared from the ledger cards for preparation of the tax returns. The
daily business transactions of the partnership were compiled into the
tax returns to reflect the profits or losses of the partnership, its income
and expenses. The tax returns are an annual summary of the
profitability of the partnership.
Id. at 295. We concluded that the tax returns were admissible under evidence rule
803(6). Id. at 296.
In Cabot Oil & Gas Corp. v. Healey, L.P., the court considered the
admissibility of Cabot’s Exhibit 37, consisting of a business records affidavit and
attached records. No. 12-11-00236-CV, 2013 WL 1282007, at *5 (Tex. App.—Tyler
Mar. 28, 2013, pet. denied) (mem. op.). The records in Exhibit 37 showed oil and
gas lease “payout calculations” based on drilling and completion costs, operating
revenue, and expenses. Id. The trial court excluded Exhibit 37 as hearsay and
because it was “an impermissible summary that failed to comply with Texas Rule of
Evidence 1006.” Id. The court of appeals disagreed, concluding that (1) Exhibit 37
should not have been excluded as hearsay because the business records affidavit
accompanying it complied with evidence rule 803(6), and (2) “as business records,
the payout calculations that comprise Exhibit 37 should not have been excluded as
summaries of business records compiled for trial purposes.” Id. at *6–7.
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As in McAllen State Bank, Curran, and Cabot Oil & Gas Corp., the
challenged exhibits “are themselves business records,” admissible because Landlord
offered evidence to establish the foundation required by rule of evidence 803(6). See
McAllen State Bank, 695 S.W.2d at 16.3 These records, the supporting testimony
from Landlord’s witnesses, and other exhibits offered by Landlord provide legally
and factually sufficient evidence to support the trial court’s findings of the amounts
due resulting from Tenant’s and Guarantors’ breaches of the Lease and guaranty.
See City of Keller, 168 S.W.3d at 827; Sunl Grp., Inc., 394 S.W.3d at 817. We decide
Tenant’s and Guarantors’ first, second, and third issues against them.
II. Attorney’s fees
In their fourth issue, Tenant and Guarantors contend that the trial court’s
award of $163,005.00 in attorney’s fees through trial is unreasonable, not supported
by the evidence, and reflects a “beyond excessive” amount of work performed “on
what should have been a simple accounting case.” They argue that Kevin Cook,
Landlord’s attorney’s fees expert, could not testify to “the basic nature of the
pleadings and motions that were filed prior to trial,” the names of key witnesses, and
“other important details that would be necessary to determine whether the legal work
performed was reasonable and necessary.” They also complain that the trial court
3
We also note that in many cases, the same figures are included in several different exhibits. In those
cases, any error in admitting duplicative evidence was harmless. See Thawer v. Comm’n for Lawyer
Discipline, 523 S.W.3d 177, 184 (Tex. App.—Dallas 2017, no pet.) (“The erroneous admission of evidence
is harmless if it is merely cumulative.”).
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sustained Landlord’s objections to Tenant’s questioning of Cook about the lack of a
budget for the case and about specific line items on Landlord’s attorney’s fees
invoices.4
“[A] claimant seeking an award of attorney’s fees must prove the attorney’s
reasonable hours worked and reasonable rate by presenting sufficient evidence to
support the fee award sought.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
578 S.W.3d 469, 501–02 (Tex. 2019). Sufficient evidence to support an award of
attorney’s fees includes, at a minimum, evidence of the following facts: (1) the
particular services performed, (2) who performed them, (3) approximately when the
services were performed, (4) the reasonable amount of time required to perform
them, and (5) the reasonable hourly rate for each person performing the services.
Kelly v. Isaac, No. 05-19-00813-CV, 2020 WL 4746589, at *7 (Tex. App.—Dallas
Aug. 17, 2020, pet. filed) (mem. op.) (citing Rohrmoos Venture, 578 S.W.3d at 502).
Although contemporaneous billing records are not required, they are strongly
encouraged. Id. As Landlord argues, it offered evidence on these factors, including
its contemporaneous billing records, even though trial occurred before Rohrmoos
Venture was decided.
4
Tenant and Guarantors also complain that the trial court improperly considered post-trial “affidavit
testimony or additional documentation” in making its attorney’s fees award to Landlord. Because they did
not obtain a ruling on this objection in the trial court, they have waived it on appeal. See TEX. R. APP. P.
33.1.
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Cook was not the only witness who testified about Landlord’s fees.
Landlord’s attorney Jennifer Gehrt testified, offering her firm’s billing statements
into evidence that showed the date, the person performing the work, a description of
the work done, the amount of time spent, and the amount charged to Landlord for
the work performed. Gehrt also testified to the hourly rate charged, and stated her
opinion that her firm’s services and the fees charged were reasonable for Kaufman
County.
Cook then testified about his 35 years of experience in commercial litigation,
insurance defense and coverage, and appellate law, including board certification in
appellate law for 15 years. He testified that he reviewed Landlord’s legal invoices,
the pleadings, and the discovery provided to him “to determine whether or not I
believed the time spent was both reasonable and necessary,” and gave his opinion
that the fees charged were both reasonable and necessary for representing Landlord
in Kaufman County. He testified that although only Landlord’s claims against
Tenant were eventually tried, there were depositions, hearings, motion practice and
appeal of third party claims that Tenant made against other parties regarding its lease
of the premises. He explained that it was reasonable and necessary for Landlord’s
attorney to attend the hearings and depositions relating to these claims. And he
testified that in reviewing the fees, he considered the factors set out in Arthur
Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997), most
of which are part of the “base lodestar figure” later described by the supreme court
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in Rohrmoos Venture. See Rohrmoos Venture, 578 S.W.3d at 500 (“we recognize
that the base lodestar figure accounts for most of the relevant Arthur Andersen
considerations”).
We conclude the trial court did not abuse its discretion in its award of
attorney’s fees to Landlord. See Avila, 506 S.W.3d at 494. Taken together, Gehrt’s
and Cook’s testimony and the detailed billing records admitted into evidence as PX
68 support the trial court’s award of $163,005.00 in attorney’s fees and expenses
incurred through trial and conditional amounts in the event of appeal. Tenant’s and
Guarantors’ complaints are challenges to Gehrt’s and Cook’s credibility and the
weight to be given their testimony, matters entirely within the trial court’s discretion.
See Weisfeld, 162 S.W.3d at 380.
In so concluding, we also reject Tenant’s and Guarantors’ complaint that the
trial court improperly limited their cross-examination of Cook on the subject of a
budget for the case or on particular line items in the fee invoices. The trial court
sustained objections to further questioning about a budget after Cook testified that
he did not know whether or not Landlord’s counsel had prepared one, and the court
did allow cross-examination of Cook extending to 50 pages of the reporter’s record.
The trial court has broad discretion to exercise control over the examination of
witnesses, and in any event, Tenant and Guarantors do not contend that any
exclusion of evidence probably resulted in the rendition of an improper judgment.
See Armstrong v. McLoughlin, No. 05-08-00253-CV, 2009 WL 428493, at *1 (Tex.
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App.—Dallas Feb. 23, 2009, pet. denied) (mem. op.) (trial court has broad discretion
to control examination of witnesses); Interstate Northborough P’ship v. State, 63
S.W.3d 213, 220 (Tex. 2001) (successful challenge to trial court’s evidentiary
rulings requires complaining party to demonstrate that the judgment turns on the
particular evidence excluded or admitted).
We decide Tenant’s and Guarantors’ fourth issue against them.
III. Additional arguments
In addition to their complaints about the admission of evidence at trial and the
attorney’s fees award, Tenant and Guarantors argue (1) the trial court erred by
denying their motion for summary judgment, (2) Landlord failed to produce
competent evidence supporting its claims in response to Tenant’s discovery requests,
and (3) Landlord is barred from recovery because it failed to furnish itemized
statements of costs as required under section 3.4(b) of the Lease (“Payment of
Excess Operating Costs”). Because the parties’ briefs include argument and
authorities on these matters, we address them.
The trial court’s denial of Tenant’s and Guarantors’ motion for summary
judgment is not appealable. “The denial of a motion for summary judgment when
followed by a conventional trial on the merits does not finally decide any issue
pending before the trial court; the denial of a motion for summary judgment presents
nothing for review.” Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.—
Dallas 2005, no pet.).
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Tenant and Guarantors do not provide any record citations showing that they
made their complaints about Landlord’s discovery responses to the trial court and
obtained a ruling. “To preserve error on a discovery dispute, the appealing party
must obtain a ruling by the trial court on the discovery issue.” In re I.A.S., No. 05-
13-00947-CV, 2014 WL 1483592, at *2 (Tex. App.—Dallas Apr. 15, 2014, no pet.)
(mem. op.); see also TEX. R. APP. P. 33.1(a) (preservation of appellate complaints).
Regarding Landlord’s failure to provide itemized statements as required by
Lease section 3.4(b), Landlord argues, among other contentions, that (1) Lease
section 3.4(b) expressly provides that Landlord’s failure to provide the statements
does not affect its right to collect the charges, and (2) Tenant did not introduce any
evidence that it gave Landlord the written notice of failure to perform required under
Lease section 12.2. Consequently, even if Landlord’s statements were insufficiently
itemized as Tenant and Guarantors contend, Tenant and Guarantors did not establish
that this alleged breach precluded Landlord’s recovery of excess operating costs
under Lease section 3.4.
We decide these additional matters against Tenant and Guarantors.
CONCLUSION
The trial court’s judgment is affirmed.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
191224F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAKEPOINTE PHARMACY #2, On Appeal from the 422nd Judicial
LLC, RAYMOND AMAECHI AND District Court, Kaufman County,
VALERIE AMAECHI, Appellants Texas
Trial Court Cause No. 90632-422.
No. 05-19-01224-CV V. Opinion delivered by Justice
Osborne. Justices Schenck and
FORNEY DEERVAL, LLC AND Partida-Kipness participating.
FORNEY WILLETTA, LLC,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Forney Deerval, LLC and Forney Willetta,
LLC recover their costs of this appeal from appellants Lakepointe Pharmacy #2,
LLC, Raymond Amaechi and Valerie Amaechi.
Judgment entered January 26, 2021
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