Mark Page, Melissa Page, and Slingshot Ventures Stores, LLC v. 3838 Oak Lawn Ave (TX) Owner, LLC ( 2023 )

Affirm and Opinion Filed May 9, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01150-CV
MARK PAGE, MELISSA PAGE, AND SLINGSHOT VENTURES STORES,
LLC, Appellants
V.
3838 OAK LAWN AVE (TX) OWNER, LLC, Appellee
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-03633
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Rosenberg1
Opinion by Justice Partida-Kipness
This is an appeal of a summary judgment rendered in a lawsuit regarding a
commercial lease. The landlord, appellee 3838 Oak Lawn Ave Owner, LLC (3838
Oak Lawn) sued the tenant, appellants Slingshot Ventures Stores, LLC (Slingshot)
and lease guarantors, Mark and Melissa Page (the Pages) for breaches of the lease
and accompanying guaranty. In eight issues, the Pages and Slingshot appeal the
granting of summary judgment in favor of 3838 Oak Lawn. We affirm.
1
The Hon. Barbara Rosenberg, Justice, Assigned
BACKGROUND
In 2015, 3838 Oak Lawn’s predecessors, TC Propco I, LP and TC Propco II,
LP (TC Propco) were the landlords of certain commercial spaces at the Turtle Creek
Village Shopping Center in Dallas. In March 2015, Slingshot entered into a lease
with TC Propco to operate a fitness center in the shopping center. The Pages2 and
John and Karen Pannell3 signed as guarantors on Slingshot’s lease with TC Propco.
The original lease was for 120 months. Monthly rent for the first sixty months was
$21,254.17 and $23,379.58 for the remaining sixty months, plus additional monthly
expenses. Attached to the original lease was Exhibit G titled “Guaranty,” which
stated:
[T]he undersigned (hereinafter referred to individually and collectively
as ‘Guarantor’, whether one or more) hereby jointly and severally
guarantee unto Landlord the payment and performance of (i) all of the
rental and other sums or charges which may ever become due and
payable by Tenant under the Lease, including, without limitation, rental
that becomes due and payable by reason of the exercise of any power
to accelerate granted to Landlord under the Lease and any damages or
other sums that become payable on account of any default by Tenant
under the Lease, and (ii) all of the other obligations, liabilities and
duties of Tenant under the Lease (the rental, other sums and charges
and other obligations, liabilities and duties described in the foregoing
clauses (i) and (ii) being hereinafter collectively referred to as the
‘Obligations’). For the purposes hereof, the term ‘Tenant’ shall include
any assignee of Tenant and the term ‘Lease’ shall include any
2
Mark Page signed documents related to the lease on behalf of Slingshot, as well as signed in his
individual capacity as a guarantor.
3
John and Karen Pannell were included in 3838 Oak Lawn’s Original Petition as defendants. Karen
filed an original answer and general denial. She later declared bankruptcy and 3838 Oak Lawn dismissed
the claims against her without prejudice. John was properly served and never responded to this lawsuit. A
default judgment was taken against him. Neither of the Pannells are a party to this appeal.
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amendment of the Lease effected by Landlord and Tenant, with or
without the consent or knowledge of Guarantor.
....
The obligations of Guarantor shall be irrevocable and unconditional,
irrespective of the genuineness, validity, regularity or enforceability of
the Lease or any security given for the Obligations or any other
circumstances which might otherwise constitute legal or equitable
discharge of surety or guarantor, and Guarantor waives the benefit of
all principles or provisions of Law, statutory or otherwise, which are or
might be in conflict with the terms of this Guaranty, and agrees that the
obligations of Guarantor shall not be affected by any circumstances,
whether or not referred to in this Guaranty which might otherwise
constitute legal or equitable discharge of surety or guarantor.
Specifically, Guarantor waives the benefits of any right of discharge
and any other rights of sureties and guarantors under applicable law.
Without limiting the generality of the foregoing, Guarantor agrees that
Landlord may, in its sole and absolute discretion, without notice to or
consent by the Guarantor, and without in any way releasing or
impairing any liability or obligation of Guarantor hereunder, . . . (ii)
modify, amend or change any provision of the Lease, (iii) grant
extensions or renewals of the Lease or the Obligations, or effect any
release, compromise or settlement in connection therewith, including
any release of the liability of Tenant or any guarantor or other person
liable on the Obligations or any part thereof, (iv) transfer its interest in
the premises covered by the Lease or its rights under this Guaranty, (v)
consent to the assignment by Tenant of its rights under the Lease, and
(vi) deal in all respects with Tenant and the Obligations as if this
Guaranty was not in effect. Guarantor further waives (i) notices of
acceptance of the Guaranty, (ii) notices to Guarantor of any kind in any
circumstances whatsoever, including without limitation, notice of
dishonor and notice of any default by Tenant under the Lease and all
waivers or indulgences granted by Landlord to Tenant under the Lease,
and (iii) diligence, presentment and suit on the part of the Landlord in
the enforcement of any of the Obligations.
Notwithstanding anything to the contrary, provided Tenant was not, at
any time during the Lease Term, in default of any of the terms,
conditions or covenants of the Lease, notwithstanding the fact that any
prior default by Tenant may have been subsequently cured, the liability
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of the Guarantor arising hereunder shall terminate upon the expiration
of the thirty-sixth (36th) full calendar month of the Lease Term.
On April 18, 2017, a “First Amendment to Shopping Center Lease” was
executed by landlord, TC Propco, and tenant, Slingshot. The amendment states:
2. Commencement Date. As of the Effective Date, Landlord and
Tenant hereby agree that Article VII.A of Exhibit “C” attached to the
Lease shall be amended, such that the Commencement Date shall be
deemed to be April 15, 2017.
....
4. Release. Landlord and Tenant both acknowledge and agree that
the effect of amending the Commencement Date to be April 15, 2017,
rather than September 16, 2015 (the date that otherwise would have
been the Commencement Date, but for this Amendment; herein called
the “Original Commencement Date”), is that Tenant will not be
obligated to pay rent from the period from the Original Commencement
Date through April 14, 2017 (the “Forbearance Period”).
....
5. Guaranty. Notwithstanding anything to the contrary, Guarantor
hereby joins in the execution of this Amendment to confirm that the
Guaranty remains in full force and effect and that Guarantor shall
remain liable for the payment and performance of all of the covenants,
duties and obligations under the Lease to be paid and performed on the
part of “Tenant” under the Lease, including, but not limited to, the
payment of rent (as amended herein) that becomes due and payable by
Tenant under Lease.
A page titled “Joinder” was attached to the amendment and stated
Guarantor has joined in the execution of this Amendment for the
purposes of providing consent to the terms and provisions of this
Amendment and acknowledging that the Guaranty remains in full force
and effect to secure the payment and performance of all liabilities,
obligations and duties of Tenant under the Lease, as amended by this
Amendment.
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The joinder page was signed by Mark Page, an individual, and Melissa Page, an
individual.
On July 21, 2017, pursuant to a purchase and sale agreement, TC Propco’s
lease with Slingshot was assigned to 3838 Oak Lawn. On March 4, 2019, Slingshot
assigned an amended lease transferring its lease to Z-Tribe, LLC.4 Under a “Consent
to Assignment and Amendment to Lease,” Slingshot retained its obligation to pay
rent, and Z-Tribe assumed the obligation to pay rent under the lease as well.
Z-Tribe failed to pay rent and notices for nonpayment of rent were sent on
October 11, 2019 and November 18, 2019. The Pages received copies of these
notices via certified mail. On January 29, 2020, the Pages were sent a written notice
of default which gave them an opportunity to cure the unpaid rent. Z-Tribe was sent
additional written notices of default on February 24, 2020 and April 27, 2020 and
given an opportunity to cure the unpaid rent. The owed rent went unpaid by the Pages
or Z- Tribe.
In the underlying proceeding, 3838 Oak Lawn asserted claims against the
Pages and Slingshot for breach of lease, breach of guaranty, and breach of
assignment. It filed a motion for summary judgment and as part of its summary
judgment evidence, 3838 Oak Lawn submitted the lease, the amendment to the lease,
4
Z Tribe, LLC was initially a defendant in this case, but executed a settlement agreement with 3838
Oak Lawn. They are not a party to this appeal.
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the guaranty, and the lease ledger documenting all payments made and balances
owed for the Z-Tribe lease. 3838 Oak Lawn amended the motion twice.
The Pages submitted declarations in response to 3838 Oak Lawn’s second
amended motion for traditional summary judgment. 3838 Oak Lawn objected and
claimed the declarations constituted incompetent summary judgment evidence
because they contained statements that were “conclusory and self-serving” with “no
factual support” and “contradict[ed] prior deposition testimony.” Following a
hearing, the trial court granted the motion and awarded 3838 Oak Lawn
$1,887,392.21, which included unpaid past due rent, lost future net rentals, and
reletting costs after crediting an offset from the Z-Tribe settlement agreement. The
trial court also awarded 3838 Oak Lawn attorney’s fees in the amount of
$159,204.52, plus attorney’s fees in the event of an appeal. This appeal followed.
ANALYSIS
In eight issues, the Pages and Slingshot argue: (1) 3838 Oak Lawn lacks
standing; (2) the trial court erred by rejecting their contention the guaranty contained
a “drop dead provision”; (3) the summary judgment evidence did not support 3838
Oak Lawn’s claim of liability and damages; (4) 3838 Oak Lawn should not be
allowed to recover damages after the debt was released and terminated; (5) 3838
Oak Lawn’s global release to Z-Tribe (another original defendant) discharged the
lease and guaranty; (6) they were denied a trial by jury; (7) the trial court failed to
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credit Z-Tribe’s settlement money as an offset; and (8) the trial court erred by
imposing joint and several liability on them for attorney’s fees.
I. Standing
The Pages and Slingshot initially challenge 3838 Oak Lawn’s standing to
bring the underlying lawsuit. First, they argue that 3838 Oak Lawn lost any standing
to sue as the property’s landlord when “it sold the land and assigned its position to
CIM Group Acquisitions, LLC” in April 2017. Second, they contend the “Lease
Termination and Settlement Agreement” executed with Z-Tribe shows 3838 Oak
Lawn no longer has any standing because the lease was deemed terminated.
3838 Oak Lawn maintains it has standing to sue for breaches of the lease, the
assignment, and the guaranty because it has an “enforceable interest in receiving the
agreed-upon compensation” for the rent, and it suffered harm when the Pages
refused to pay the amounts owed by them as guarantors. It also argues it has capacity
to sue under the lease and guaranty. 3838 Oak Lawn further states the settlement
agreement with Z-Tribe did not deprive it of standing in this suit because that
settlement was for a lesser amount than the damages owed, and 3838 Oak Lawn is
entitled to be made whole by “recovery of its damages from all liable parties.”
“A party must have both standing to sue and capacity to sue.” Austin Nursing
Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “The issue of standing focuses
on whether a party has a sufficient relationship with the lawsuit so as to have a
‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as
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a procedural issue dealing with the personal qualifications of a party to litigate.’” Id.
at 849. “A plaintiff has standing when it is personally aggrieved, regardless of
whether it is acting with legal authority; a party has capacity when it has the legal
authority to act, regardless of whether it has a justiciable interest in the controversy.”
Id. at 848–49 (quoting Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d
659, 661 (Tex. 1996)). Standing is a component of subject matter jurisdiction and
can never be waived. Id. at 849; John C. Flood of DC, Inc. v. SuperMedia, L.L.C.,
408 S.W.3d 645, 650 (Tex. App.—Dallas 2013, pet. ref’d). Unlike standing, “an
argument that an opposing party does not have the capacity to participate in a suit
can be waived.” Nootsie, 925 S.W.2d at 662 (citing TEX. R. CIV. P. 93).
3838 Oak Lawn, via a sales contract, was assigned the lease with Slingshot
with the Pages as guarantors. It has standing because it was personally aggrieved
when the lease was not fully performed by Z-Tribe and Slingshot. It also has capacity
because it still has a legal authority to act for damages under the contract. 3838 Oak
Lawn can properly bring this suit. We overrule the Pages’ and Slingshot’s first issue.
II. Summary Judgment
Next, the Pages and Slingshot argue the summary judgment evidence did not
support 3838 Oak Lawn’s claims of liability and damages. The Pages further
contend the guaranty had a 36-month “drop dead clause” under which their
obligations should be discharged. 3838 Oak Lawn argues the evidence shows there
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was no genuine issue of material fact and the Lease, Guaranty, and Assignment were
valid and enforceable contracts.
We review a summary judgment ruling de novo. Aflalo v. Harris, 583 S.W.3d
236, 240–41 (Tex. App––Dallas 2018, pet. denied) (en banc) (citing Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). The
movant must prove that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166(a); B.C. v. Steak N Shake
Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017). “We review summary judgment
evidence in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could not.”
B.C., 512 S.W.3d at 279.
A. Guaranty Provision
The Pages argue that the following “notwithstanding clause” limits their
liability under the guaranty:
Notwithstanding anything to the contrary, provided Tenant was not, at
any time during the Lease Term, in default of any of the terms,
conditions or covenants of the Lease, notwithstanding the fact that any
prior default by Tenant may have been subsequently cured, the liability
of the Guarantor arising hereunder shall terminate upon the expiration
of the thirty-sixth (36th) full calendar month of the Lease Term.
They assert that the lease’s commencement date was “no earlier than March
31, 2015, and no later than September 30, 2015.” Using those dates, the Pages argue
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the guaranty expired or “dropped dead” on September 30, 2018. They contend 3838
Oak Lawn’s entire theory of liability and damages fails if the notwithstanding clause
is applied because it limits the scope of guaranty. They maintain the trial court erred
by rejecting this argument and granting summary judgment for 3838 Oak Lawn.
To determine a guarantor’s liability, we look to the language of the guaranty
agreement. BBVA USA v. Francis, 642 S.W.3d 932, 936 (Tex. App.—Houston [14th
Dist.] 2022, no pet.). The interpretation of a guaranty agreement, like any contract,
is a legal question we review de novo. Id. We construe guaranties strictly according
to their precise terms and must not extend the guarantor’s obligations beyond the
language of the agreement. Id. We also construe a guaranty as we would any other
contract, and our primary concern is to ascertain and give effect to the written
expression of the parties’ intent. Id.; see Plains Expl. & Prod. Co. v. Torch Energy
Advisors, Inc., 473 S.W.3d 296, 305 (Tex. 2015).
We afford terms their plain and ordinary meaning unless the contract indicates
that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship
v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We consider the entire contract,
respecting all provisions so that none are rendered meaningless. Plains Expl. &
Prod., 473 S.W.3d at 305. If possible, we avoid a construction that is unreasonable,
inequitable, and oppressive. Francis, 642 S.W.3d at 936. If the contract is
unambiguous, we enforce it as written without considering parol evidence. David J.
Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam).
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Applying these standards, we conclude the Pages’ analysis is flawed because
it is based on an incorrect commencement date. The first amendment to the lease
amended the commencement date to April 15, 2017, and stated the guaranty
remained in “full force and effect and that Guarantor shall remain liable for the
payment and performance” of all requirements of the tenant under the lease. The
Pages signed a joinder stating they provided consent to the “terms and provisions of
this Amendment and acknowledging that the Guaranty remains in full force and
effect to secure the payment and performance of all liabilities, obligations, and duties
of Tenant under the Lease, as amended by this Amendment.” Even though the Pages
allege they did not agree to the First Amendment, the original guaranty, which they
did agree with, also states “For the purposes hereof, the term “Tenant” shall include
any assignee of Tenant and the term “Lease” shall include any amendment of the
Lease effected by Landlord and Tenant, with or without the consent or knowledge
of Guarantor.” Under the plain language of the First Amendment, the
commencement date of the Lease became April 15, 2017. Thirty-six months from
that date was April 15, 2020. If no default occurred before April 15, 2020, then the
Guaranty would have expired on that date.
Here, however, Slingshot defaulted on rent in January 2019, and Z-Tribe
defaulted in February 2021 and April 2021. The Guaranty, therefore, did not expire
at the end of thirty-six months, and the Pages remained liable under the documents
they signed and joined. We conclude the notwithstanding provision did not change
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that obligation, and the drop-dead provision cannot be invoked. We overrule
appellant’s second issue.
B. Summary Judgment Evidence
Having determined the Guaranty’s 36-month provision was valid and in effect
at the time of the rental defaults, we turn next to appellants’ contention the evidence
presented in support of summary judgment was insufficient to support the trial
court’s summary judgment ruling. 3838 Oak Lawn submitted the following evidence
in support of the motion: the original lease between TC Propco and Slingshot, the
guaranty signed by the Pages, the First Amendment to the Shopping Center Lease
including the Pages’ signatures on the joinder document, the Assignment from
Slingshot to Z-Tribe, and the letters sent to Z-Tribe and Slingshot regarding unpaid
rent. Although the Pages argue the guaranty did not apply to the commencement date
in the First Amendment, they are mistaken. The wording in the documents, plus the
wording contained in the joinder they signed, clearly show the First Amendment was
an amendment to the original lease, amended the commencement date, and the
guaranty applied.
The Pages and Slingshot argue the commencement date begins on March 5,
2015 and ends on March 8, 2018. They state there was no default on rent prior to
March 8, 2018, and therefore, the 36-month provision in the guaranty should apply.
They later submitted a post-submission brief raising arguments regarding settlement
credit, ambiguity of the guaranty provision, and stated the joinder document did not
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“create” a new guaranty under which they were still liable. That same day, they also
filed a First Trial Amendment where they raised “release” as an affirmative defense.
However, the brief and trial amendment were submitted after the trial court issued
its order granting 3838 Oak Lawn’s summary judgment.
Nothing presented by the Pages and Slingshot showed an ambiguity in the
documents or a fact question to be resolved by a jury. Z-Tribe and Slingshot failed
to perform under the lease agreement by not paying rent within the first 36 months
of the lease. The Pages’ guaranty did not expire at the end of the first 36 months due
to the unpaid rent. Therefore, the Pages were still liable under the terms of the
guaranty. The trial court did not err by granting summary judgment on behalf of
3838 Oak Lawn. Their third and fourth issues are overruled.
III. Release and Discharge of Lease with Z-Tribe
In their fifth and sixth issues, the Pages argue the settlement agreement 3838
Oak Lawn executed with Z-Tribe terminated the lease, and therefore, released them
from their obligations under the Guaranty. They also argue that the final judgment
did not give them credit for Z-Tribe’s $60,926.00 settlement with 3838 Oak Lawn.
3838 Oak Lawn argues the Pages and Slingshot waived this issue by not raising the
affirmative defense of release prior to the summary judgment hearing or order. 3838
Oak Lawn also states the settlement amount it received from Z-Tribe was deducted
from the amount ordered prior to the final judgment.
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Release is an affirmative defense. TEX. R. CIV. P. 94. The “defendant bears
the burden to plead and prove the existence of an effective and valid release.” Barras
v. Barras, 396 S.W.3d 154, 170 n.5 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied) (citing Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)). In general, a
release is a complete bar to any later action based upon matters covered in the
release. Schomburg v. TRW Vehicle Safety Systems, Inc., 242 S.W.3d 911, 913 (Tex.
App.—Dallas 2008, pet. ref’d). A release applies to a party that is either specifically
identified in the release or described with sufficient particularity. See Duncan v.
Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984). When a release refers to a
related document, that document should be considered when reviewing a release.
Anheuser-Busch Cos. v. Summit Coffee Co., 858 S.W.2d 928, 932–34 (Tex. App.—
Dallas 1993, writ denied), vacated on other grounds, 514 U.S. 1001, 115 S.Ct. 1309
(1995).
3838 Oak Lawn is correct in its assessment. The Pages and Slingshot did not
raise an affirmative defense of release prior to the entry of the order granting
summary judgment. But even if they had raised release as an affirmative defense, it
would fail. The settlement agreement document was executed between 3838 Oak
Lawn and Z-Tribe and identifies the landlord and tenant as the parties to the
agreement. Under the section titled “Dismissal of Claims Against Tenant,” the
settlement agreement states,
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for clarity and avoidance of doubt, by this Agreement, Landlord and
Tenant agree that Landlord does not intend to and shall not dismiss the
Lawsuit nor any claims against any party other than Tenant in the
Lawsuit or otherwise waive or release any other claims against any
other person or entity arising out of or related to the Lease or the
Premises.
At no point in time was the guaranty or the Pages mentioned in the settlement
agreement. Therefore, even if the Pages had properly raised release as an affirmative
defense, it would fail because there was no indication in the settlement agreement
that it was written to release the guaranty obligation.
The Pages also allege the trial court did not give credit to the amount of the
settlement agreement in the final judgment. That is incorrect. The trial court awarded
3838 Oak Lawn damages of $1,887,392.21, which were calculated by adding
$403,165.97 of unpaid rent, $998,085.99 of liquidated damages, and $486,145.25 of
reletting costs after subtracting the $63,541.73 payment from Z-Tribe’s settlement
agreement. The Pages’ fifth and sixth issues are overruled.
IV. Attorney’s Fees
The Pages and Slingshot argue 3838 Oak Lawn did not properly prove up or
allocate its attorney’s fees. 3838 Oak Lawn states it was entitled to attorney’s fees
based on the language contained in the lease, guaranty, and assignment. We agree
with 3838 Oak Lawn.
To recover attorney’s fees, a party must establish that it prevailed on a claim
that allows the recovery of fees, as well as the reasonableness and necessity of the
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claimed fees. Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469, 484
(Tex. 2019). Additionally, “if a fee opponent seeks a reduction, it bears the burden
of providing specific evidence to overcome the presumptive reasonableness of the
base lodestar figure.” Id. at 501. The lodestar method for determining the
reasonableness and necessity of attorney’s fees in a fee-shifting situation states:
the determination of what constitutes a reasonable attorney’s fee
involves two steps. First, the [fact finder] must determine the
reasonable hours spent by counsel in the case and a reasonable hourly
rate for such work. The [fact finder] then multiplies the number of such
hours by the applicable rate, the product of which is the base fee or
lodestar. The [fact finder] may then adjust the base lodestar up or down
(apply a multiplier), if relevant factors indicate an adjustment is
necessary to reach a reasonable fee in the case.
Id.
At a separate hearing regarding attorney’s fees, 3838 Oak Lawn presented
evidence in the form of an uncontested testimony of Samuel Hardy, its lead attorney
designated as its attorney’s fee expert. Hardy stated he worked 48 hours at a rate of
$500, his co-counsel worked 288 hours at a rate of $425, another attorney at their
firm worked 4 and a half hours at a rate of $425, Hardy’s paralegal worked 35 hours
at a rate of $240, and another paralegal worked for 1.8 hours at a rate of $235 an
hour. He also presented billing records regarding the work performed on the case,
the dates worked, time spent, the reasonable hourly rate, and stated he reduced the
fees charged for work that duplicated. The Pages objected to the hearing and
testimony but provided no specific evidence to overcome the reasonableness of
Hardy’s testimony and figures. Under this record, we conclude the trial court did not
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err by awarding attorney’s fees in the amount of $159,204.52 against the Pages and
Slingshot.
The Pages also argue the claims are not properly segregated according to each
client. We disagree. Segregation is required between claims that are nonrecoverable
versus recoverable claims. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
311 (Tex. 2006). A “recognized exception to this duty to segregate arises when the
attorney’s fees rendered are in connection with claims arising out of the same
transaction and are so intertwined that their ‘prosecution or defense entails proof or
denial of essentially the same facts.” Id. Here, the claims against the defendants
below were each based on the same documents and the trial court’s interpretation of
those documents. We conclude 3838 Oak Lawn was not required to segregate its
attorney’s fees per defendant because the facts were so intertwined that their proof
relied on essentially the same facts. The trial court did not err by granting the
attorney’s fees. We overrule appellants’ seventh issue.
V. Jury Demand
Next, appellants argue they were denied their right to have a jury to determine
damages and attorney’s fees. This is incorrect. However, there was no right to a jury
trial on damages because there was no issue of material fact for a jury to determine.
Regarding attorney’s fees, 3838 Oak Lawn argues the Pages did not request
that the issue be tried to a jury. We review the denial of a jury demand for an abuse
of discretion. In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019). Reasonableness is
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a fact issue that a jury, upon proper request, may resolve. Pisharodi v. Columbia
Valley Healthcare Sys., L.P., 622 S.W.3d 74, 90 (Tex. App.—Corpus Christi-
Edinburg 2020, no pet.). However, even though a jury demand was filed in the
court’s papers by another original defendant, the Pages did not make a request for a
jury trial. The Pages were, therefore, not entitled to a jury trial as to fees. We overrule
their eighth issue.
CONCLUSION
3838 Oak Lawn conclusively established it was entitled to the damages the
trial court awarded it under the lease, the first amendment to the lease, and the
guaranty. Appellants failed to present evidence to raise a genuine issue of material
fact concerning the obligations under the guaranty. The trial court, therefore, did not
err by granting summary judgment for 3838 Oak Lawn. Accordingly, we affirm the
trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
211150F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARK PAGE, MELISSA PAGE, On Appeal from the 160th Judicial
AND SLINGSHOT VENTURES District Court, Dallas County, Texas
STORES, LLC, Appellants Trial Court Cause No. DC-20-03633.
Opinion delivered by Justice Partida-
No. 05-21-01150-CV V. Kipness. Justices Nowell and
Rosenberg participating.
3838 OAK LAWN AVE (TX)
OWNER, LLC, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee 3838 OAK LAWN AVE (TX) OWNER,
LLC recover its costs of this appeal from appellants MARK PAGE, MELISSA
PAGE, AND SLINGSHOT VENTURES STORES, LLC.
Judgment entered this 9th day of May 2023.
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