Larry Everette White v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00173-CR

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LARRY EVERETT WHITE, JR., Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 21,420

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            On June 6, 2003, Larry Everett White, Jr., waived his right to a jury trial and pled guilty in Hunt County cause number 21,420 to assaulting a public servant. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2004) (assaulting a public servant in line of duty is a first-degree felony). The indictment further alleged White had been previously, finally, and sequentially convicted of two additional felony offenses. After the trial court admonished White about the enhanced punishment range applicable in this case, White pled "true" to enhancement allegations. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004) (twenty-five years is the minimum punishment for a first-degree felony with two priors; maximum of ninety-nine or life). The trial court then ordered a presentence investigation (PSI) report.

            After considering further testimony on punishment and the PSI report at a July 24, 2003, hearing, the trial court sentenced White to fifty years' imprisonment. (There was not a negotiated plea agreement in this case.) White timely appealed his conviction and sentence to this Court.

            On November 20, 2003, White's appellate counsel filed an Anders brief in which he professionally discussed the record and concluded there were no arguable grounds for appeal. As required by Anders, counsel also filed a motion to withdraw. Counsel sent White a copy of the appellate brief and informed White of his right to file a pro se response and right to review the record.

            This Court informed White at that time his response, if any, was due within thirty days. As of this date, we have not received a pro se response. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. Dr. Michael Pittman evaluated White and submitted a report to the trial court in which Pittman concluded White was legally competent to stand trial. At the guilty plea hearing, White's answers to the trial court's questions were articulate and responsive. White agreed with his trial counsel that, by pleading guilty to each of the five charges, he avoided the potentiality for cumulated sentencing, a risk inherent had he pursued separate trials in each of the cases. White's trial counsel also informed the trial court that, though White's competency had once been an issue, White did understand the pending charges and had been able to assist counsel in preparing a defense.

            The evidence presented at the sentencing hearing revealed White had twice previously been convicted of delivery of controlled substances and also of being a felon in possession of a firearm. Moreover, White pled guilty to four other serious felony offenses in conjunction with the crime underlying this case. There was testimony that suggested White had a substance abuse problem, which may have contributed to his conduct underlying the crimes now on appeal. The punishment assessed in this case was within the range of punishment permitted under Texas law. Accordingly, we affirm the trial court's judgment.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          March 2, 2004

Date Decided:             March 18, 2004

Do Not Publish

the Lehmann language, stating "[a]ll relief requested by any party in this case that is not expressly granted by this judgment is denied. This judgment finally disposes of all parties and claims in this action, is a final judgment, and is therefore appealable." In such a case, where the language of the order suggests the court intended the summary judgment to be final, but adjudicated counterclaims which were not brought by summary judgment, the judgment is "final-erroneous, but final." Id. at 200.

A judgment that grants more relief than requested is "subject to reversal, but it is not, for that reason alone, interlocutory." Id. "In those circumstances, the order must be appealed and reversed." Id. at 206. If we determine Eastburn was not entitled to summary judgment on her claims, the entire judgment of the trial court will be reversed. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997). However, if we determine that "the summary judgment in favor of the plaintiff on its claims was proper, [we must] affirm the judgment of the trial court in part, reverse in part since only a partial summary judgment should have been rendered, and remand the case" for further proceedings in the trial court. Bandera Elec. Coop. v. Gilchrist, 946 S.W.2d 336, 336 (Tex. 1997); Page, 941 S.W.2d at 102; Jones v. Ill. Employers Ins. of Wausau, 136 S.W.3d 728, 743-44 (Tex. App.--Texarkana 2004, no pet.); Pinnacle Data Servs. v. Gillen, 104 S.W.3d 188, 199 (Tex. App.--Texarkana 2003, no pet.); Klevin v. Tex. Dep't of Criminal Justice--I.D., 69 S.W.3d 341, 344 (Tex. App.--Texarkana 2002, no pet.).

III. Standard of Review

A trial court's summary judgment is reviewed de novo. Laidlaw v. Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.--Texarkana 2008, no pet.). Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.--Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)). In deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the nonmovant. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).

IV. Summary Judgment on Eastburn's Breach of Contract Claim Was Proper

A. The Unambiguous Lease Provisions

Both parties believe the lease's unambiguous language supports their position. We must first answer the question of whether this lease contract is ambiguous. This is a question of law which we review de novo. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). We cannot ignore the clear language of an unambiguous contract. Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894, 899 (Tex. App.--Tyler 2005, no pet.). If the lease provision above can be given a certain or definite meaning or interpretation, it is not ambiguous, and we must simply apply the language in the lease. Lopez, 22 S.W.3d at 861. However, where there are two reasonable interpretations of the same language in a document, ambiguity arises. Id.

Construction of the lease provisions was key in resolving the summary judgment. Section 5.2 of the lease stated:

Upon receipt of Landlord's prior written approval, Tenant may from time to time, at its own expense, alter, renovate or improve the interior of the Premises . . . so as not to weaken or impair the strength or lessen the value of the Building . . . .

. . . .

At the expiration or other termination of this Lease, and upon obtaining the prior written consent of Landlord, Tenant shall remove such alterations, decorations, additions and improvements and restore the Premises as provided in Section 5.5, and if Tenant fails to do so and moves from the Premises, all such alterations, decorations, additions and improvements shall become the property of Landlord and Landlord may, at Tenant's expense, remove all such alterations, decorations, additions and improvements.  

Section 5.5 entitled "Trade Fixtures" provided:

Tenant shall have the right, at the termination of this Lease, to remove any and all trade fixtures, equipment and other items of personal property not constituting a part of the freehold which it may have stored or installed in the Premises, including, but not limited to, counters, shelving, showcases, chairs and movable machinery purchased or provided by Tenant and which are susceptible of being moved without damage to the Property . . . ; and provided further that Tenant, at its own cost and expense, shall repair any damage to the Premises caused thereby. . . .  Further, upon termination of this Lease, or within five (5) days thereafter, Tenant shall replace the wall surfaces in the kitchen are [sic] of the Premises with taped and floated sheet rock. The right granted Tenant in this Section shall not include the right to remove any plumbing or electrical fixtures or equipment, heating or air conditioning equipment, floor coverings (including wall-to-wall carpeting) glued or fastened to the floors or any paneling, tile or other materials fastened or attached to walls or ceilings, all of which shall be deemed to constitute a part of the freehold, and, as a matter of course, shall not include the right to remove any fixtures or machinery that were furnished or paid for by Landlord. The Premises and the immediate areas in front, behind and adjacent to it shall be left in a broom-clean condition, and in the condition in which they existed as of the Lease Commencement Date, normal wear and tear excepted. . . . If Tenant shall fail to remove its trade fixtures or other property at the termination of this Lease or within five (5) days thereafter, such fixtures and other property not removed by Tenant shall be deemed abandoned by Tenant, and, at the option of Landlord, shall become the property of Landlord, and Landlord may, at Tenant's expense, remove such trade fixtures and other property and store or dispose of the same, at Tenant's sole cost and expense.

Section 10.5, entitled "Surrender of Premises and Holding Over," stated:  

At the expiration of the tenancy, Tenant shall surrender the Premises in good condition, reasonable wear and tear excepted . . . Tenant shall remove all its trade fixtures and any alterations or improvements, subject to the provisions of Section 5.5, before surrendering the Premises, and shall repair, at its own expense, any damage to the Premises caused thereby.

When read as a whole, we believe the language in the contract is unambiguous for the reasons discussed below. The Cammacks suggest that they were not responsible for removing the items complained of because Section 5.5 of the lease, entitled "Trade Fixtures," does not give them the right to remove: trade fixtures which they may have installed, plumbing, electrical heating or air conditioning equipment, floor coverings, tiles, or other materials constituting a part of the freehold. "Trade Fixtures" have been defined many times by the courts to include:

such articles as may be annexed to the realty by the tenant to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy contract or in which he is engaged while occupying the premises, and which can be removed without material or permanent injury to the freehold.

Boyett v. Boegner, 746 S.W.2d 25, 27 (Tex. App.--Houston [1st Dist.] 1988, no pet.); see Ashford.Com, Inc. v. Crescent Real Estate Funding III, L.P., No. 14-04-00605-CV, 2005 WL 2787014, at *9 (Tex. App.--Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem. op.) (citing Connelly v. Art & Gary, Inc., 630 S.W.2d 514, 515 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.)). In other words, trade fixtures are those that are only removable without permanent or material injury to the premises. Ashford.Com, 2005 WL 2787014, at *9; Connelly, 630 S.W.2d at 515. We must reject the Cammacks' argument because the items Eastburn required to be removed are improvements or alterations, as admitted by Jason Cammack in his affidavit, and, by definition, are not trade fixtures such that they could be covered by Section 5.5.

We harmonize and give effect to all the lease provisions in relation to the whole instrument so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Here, Sections 5.2 and 10.5 set forth the general requirement that the Cammacks must surrender the premises in good condition, remove all trade fixtures and alterations and improvements, restore the premises, and repair any damage to the property caused due to removal at their own expense. Even Section 5.5 reiterates the general requirement that the Cammacks are to leave the property in "broom-clean condition, and in the condition in which they existed as of the Lease Commencement Date."

B. The Cammacks' Breach

When reviewing the laundry list of complaints in Eastburn's demand notice, it is clear that several of Eastburn's complaints involved failure to clean the premises, a duty that Jason realized he had, but, by his admission, failed to perform. Although the Cammacks removed their trade fixtures, according to Eastburn's affidavit, they did nothing to remove their improvements and restore the premises. Specifically, Jason admitted to not removing the 1,500-gallon grease trap, stainless steel on the wall behind the stove, vents on the roof of the kitchen area, and the FRP from the walls. He also admitted to throwing away Eastburn's can lights and replacing them with fluorescent lighting. Eastburn's uncontroverted affidavit stated the walls had not been repaired with taped and floated drywall as required by Section 5.5. Eastburn's affidavit also mentioned the Cammacks failed to make repairs to restore the premises to its condition prior to the lease, including the following admitted by Jason: failure to repair holes in the roof, ceiling, floor and tile, replace Eastburn's lights which were thrown away, and cap and cover various gas and plumbing fixtures and an electrical conduit. Eastburn's uncontroverted affidavit also complains of the Cammacks' failure to repair damaged or missing molding, a damaged window, and restore the ground where the grease trap was placed after its removal. Photographs submitted in support of the summary judgment motions confirm the condition in which the property was left.

Further, Eastburn's affidavit also established that the Cammacks continually failed to pay rent on time, a fact that was never contested by the Cammacks. Also, Section 10.5 of the lease, entitled "Surrender of Premises and Holding Over," provided:

Tenant shall remove all its trade fixtures and any alterations or improvements, subject to the provisions of Section 5.5, before surrendering the Premises, and shall repair, at its own expense, any damage to the Premises caused thereby. Tenant's obligations to observe or perform this covenant shall survive the expiration or other termination of this lease. If Tenant remains in possession of the Premises after the expiration of the tenancy created hereunder, whether or not with the consent or acquiescence of the Landlord, and without the execution of a new lease, Tenant, at the option of landlord, shall be deemed to be occupying the Premises as a tenant at will on a month-to-month tenancy.

Because the Cammacks failed to remove their improvements and restore the premises, they were subject to the holdover provision under the lease. The affidavit of Jason states the lease terminated on June 30, 2007, and that Eastburn changed the locks on July 1, 2007, and only allowed entry onto the premises during her business hours, as stated in the lease. He complains that the Cammacks should not be held liable for holdover damages because Section 5.5 of the lease allowed a five-day period to remove trade fixtures. However, this five-day period was allowed only if the Cammacks were not in default, and did not guarantee twenty-four-hour access. Thus, the Cammacks failed to present a genuine issue of material fact to counter Eastburn's holdover claim.

In sum, the summary judgment evidence left no issue of material fact regarding the Cammacks' breach of lease.

C. Damages and Attorney's Fees

On appeal, the Cammacks do not challenge the amount of damages, but simply claim Eastburn was not entitled to recover them because she was not entitled to summary judgment. We overrule this point of error. ⁽⁵⁾

The lease agreement provided attorney's fees to the prevailing party for any litigation arising out of enforcement of the lease. Tex. Civ. Prac. & Rem. Code Ann. §Â 38.001(8) (Vernon 2008). The Cammacks complain that Eastburn's attorney's fees are not reasonable or necessary, especially since counsel did not furnish a time record. Production of a time record is not essential when requesting attorney's fees. While reasonableness of an attorney's fee award often presents a question of fact, an "affidavit filed by the movant's attorney that sets forth his qualifications, his opinion regarding reasonable attorney's fees, and the basis for his opinion will be sufficient to support summary judgment, if uncontroverted." In re Estate of Tyner, No 12-08-00232-CV, 2009 WL 1609963, at *4 (Tex. App.--Tyler June 10, 2009, no pet.) (citing Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.--San Antonio 1999, pet. denied)); Haden v. Sacks, No 01-01-00200-CV, 2009 WL 1270372, at *5 (Tex. App.--Houston [1st Dist.] May 7, 2009, no pet. h.). Counsel submitted an affidavit of attorney's fees totaling $19,945.00. It detailed the involvement with the case, stated counsel's associate worked 43.8 hours at the rate of $125.00 per hour, and that he worked 84 hours, 9.2 hours of which were billed at $150.00 per hour and 74.8 hours of which were billed at $175.00 per hour. Eastburn's affidavit established that she was required to pay these fees.

Based on a false assumption that the final order denied the "holdover and cleaning claims," the Cammacks argue Eastburn should not receive attorney's fees because their counsel did not segregate the "cleaning and holdover claims" from the restoration claims. ⁽⁶⁾ When a plaintiff seeks to recover attorney's fees where at least one claim supports an award of attorney's fees and at least one does not, segregation is required unless the claims arise out of the same transaction and are so interrelated that the award or denial depends on the same facts. Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 709 (Tex. App.--Fort Worth 2006, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 317 (Tex. App.--Texarkana 2002, pet. denied); Flint & Assocs. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.--Dallas 1987, writ denied). All of Eastburn's claims were for breach of the lease, any of which would support an award for attorney's fees. Further, the claims all arose from the same transaction and involved essentially the same facts. Segregation of the breach of lease claims was not needed in this case.

Thus, unless the necessity for or the reasonableness of attorney's fees was controverted by raising a fact question in a manner which would successfully preclude the summary judgment award of attorney's fees, Eastburn was entitled to have them awarded to her. "[A] summary judgment award of attorney's fees is improper where the nonmovant produces a controverting affidavit regarding fees." AU Pharm., Inc. v. Boston, 986 S.W.2d 331, 338 (Tex. App.--Texarkana 1999, no pet.). To constitute proper summary judgment evidence, an affidavit must be made on personal knowledge, set forth facts which would be admissible in evidence, and show the affiant's competence. Id.; see Tex. R. Civ. P. 166a(f). "Conclusory statements or statements based purely on opinion are not competent summary judgment evidence." Hawthorne v. Star Enter., Inc., 45 S.W.3d 757, 759 (Tex. App.--Texarkana 2001, pet. denied); see Haden, 2009 WL 1270372, at *5. Although an expert witness's opinion testimony in a summary judgment affidavit can defeat a summary judgment claim, it is the basis of the expert's claim, and not the expert's bare opinions alone, that can settle a question as a matter of law. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).

Here, the affidavit submitted by the Cammacks' attorney attempting to controvert the merit of the movant's summary judgment affidavit supporting an award of attorney's fees which had been incurred stated, "[t]he attorney fees plaintiff's attorney claims are not necessary or reasonable, and they are an excessive and bad faith demand" without providing a rationale upon which the statement was based. The affidavit contains no recitation that the hourly rates charged by Eastburn's attorneys were unreasonably high, that the time alleged to have been expended was excessive to accomplish the work which was provided, that work performed by her attorneys was unnecessary to prosecute the case, or that the work as alleged was not performed. In sum, there is no evidence underlying the conclusion that Eastburn's requested attorney's fees at the trial level are unreasonable or unnecessary. Therefore, since the affidavit does not provide any basis for the statement made, the statement is simply conclusory in nature. The remainder of the affidavit claims that the fees are unreasonable because the lease did not support an award for Eastburn, the claims were not segregated, and Eastburn's summary judgment motion was groundless. These are legal arguments, not facts, which are resolved in Eastburn's favor. The controverting affidavit makes no mention of Eastburn's anticipated attorney's fees on appeal, and those fees remain uncontested.

V. Conclusion

We affirm the summary judgment of the trial court on Eastburn's claims, and by implication, against the Cammacks' counterclaim regarding the security deposit. However, because the trial court did not adjudicate the Cammacks' remaining counterclaims, we reverse and remand in part for further proceedings consistent with this opinion.

Bailey C. Moseley

Justice

Date Submitted: July 13, 2009

Date Decided: September 25, 2009

1. The lease was entered on June 6, 2005, and expired by its own terms on June 30, 2007.

2. Fiberglass-reinforced plastic.

3. "A motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for the hearing." Tex. R. Civ. P. 166a(c). We do not construe the Cammacks' brief references to its counterclaims in a motion filed less than twenty-one days before the summary judgment hearing as a proper motion for summary judgment on the counterclaims. Also, it appears to us that the Cammacks mistakenly argued, through references such as "[t]here is at least a fact issue whether Eastburn is entitled to keep all of the deposit," that summary judgment on Eastburn's claims should be precluded because fact issues existed regarding the Cammacks' amended counterclaims.

4.

Disposition of a particular issue may be inferred from other provisions of a judgment, provided that the inference follows as a necessary implication. Matelski v. Matelski, 840 S.W.2d 124, 126 (Tex. App.--Fort Worth 1992, no writ) (citing Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941)). While we believe the trial court's grant of Eastburn's breach of lease claim necessarily implied a ruling that Eastburn did not wrongfully withhold the security deposit under the lease, we do not believe the same is true of the wrongful exclusion, and alleged "failure of consideration," wherein the Cammacks sought credit for the weeks of rent in which Eastburn allegedly failed to repair the air conditioning.

5.

The trial court awarded $36,069.06 in damages. This was supported by the uncontroverted affidavit of Bala Duszik, owner of a construction company, who provided itemized bids and stated the cost to restore the premises would be $19,155.00, with an additional $16,914.06 to remove the grease trap and restore the ground.

6.

The final order simply denied the Cammacks' motion for summary judgment and granted Eastburn's motion. It made no distinction relating to the holdover claims.