Daftary, Guatum C., and Daftary, Shweta G. v. Prestonwood Market Square, LTD., and New Pepper Square S/C, LTD.

Reverse and Render; Opinion Filed February 1, 2013.
In The
Qluurt uf Appiats
iiftI! 3itrict øf Jixa at Oatlaz
No. 05-11-00673-CV
GAUTAM C. DAFTARY AND SHWETA G. DAFTARY, Appellants
V.
PRESTONWOOD MARKET SQUARE, LTD. AND NEW PEPPER SQUARE SIC, LTD.,
Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-11-01529-D
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Moseley
Gautham C. Daftary and Shweta G. Daftary (the Daftarys) appeal the trial court’s entry of
an adverse judgment in an action for forcible entry and detainer.
1 The trial court awarded possession
of the property, damages, and attorney’s fees to Prestonwood Market Square, Ltd. and Henry S.
Miller Brokerage, LLC.
2 In five issues on appeal, the Daftarys argue the trial court lacked
jurisdiction to renderjudgment, the evidence was legally insufficient to support the damages award,
The parties filed multiple lawsuits against one another, which the court consolidated into one action. The court then tried the forcible-detainer
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action after abating all other claims between the parties. After concluding the forcible-detainer trial and entering a Partial Judgment, the court granted
appellees’ motion to sever the forcible detainer from the other claims in the case. The severed action was assigned a separate cause number. This
appeal followed.
Appellees are entities created by Henry S. Miller Company. We will refer to them collectively as “HSM.”
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the trial court erred by awarding attorney’s fees to HSM, the trial court abused its discretion by
severing the forcible-detainer action from the other claims in the case, and there is no final judgment
in the case.
The background and facts of the case are well-known to the parties; thus, we do not recite
them here in detail. Because all dispositive issues are settled in law, we issue this memorandum
opinion. TEx. R. App. P. 47.2(a), 47.4. Because we lack jurisdiction over the Daftarys’ complaints
about the trial court’s order severing the forcible-detainer partial judgment, we dismiss those
complaints on appeal. Because HSM’s cause of action for possession of the premises was mooted
before trial, we vacate the trial court’s judgment awarding possession of the premises to HSM and
dismiss that claim as moot. Additionally, because there is no evidence of HSM’s damages, we
reverse the trial court’s judgment awarding HSM damages and attorney’s fees, and render a take-
nothing judgment on HSM’s requests for damages and attorney’s fees.
The Daftarys leased commercial real estate from HSM for $12.00 per square foot. The lease
expired on June 30, 2008. The Daftarys sought to exercise a three-year renewal option. Although
the Daftarys and HSM did not sign a new lease or an extension, the Daftarys continued paying rent
pursuant to the terms of the expired lease from July 2008 until September 2009.
In October 2009, HSM informed the Daftarys that if they continued to occupy the space, they
could either execute a new, long-term lease or pay holdover rent. The Daftarys believed they had
executed the three-year option on the prior lease and a new, long-term lease was unnecessary. The
following month, HSM notified the Daftarys it was terminating their month-to-month tenancy and
that they must vacate the premises within 30 days, or no later than December 21, 2009. When the
Daftarys failed to vacate the premises, HSM filed a forcible-detainer action in the justice court. In
February 2010, the justice court held a hearing on HSM’s forcible-detainer action and awarded
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possession of the premises to HSM. The Daftarys appealed the ruling to the County Court at Law;
the Daftarys continued to occupy the premises during the pendency of the appeal.
The County Court at Law conducted a trial de novo on HSM’s forcible-detainer action on
January 25, 2011. On the day of trial, before the proceedings began, the Daftarys presented the trial
court with the keys to the premises and tendered possession. The Daftarys then argued the forcible
detainer case was moot because the case no longer presented an issue about which party was entitled
to possession. The trial court proceeded to conduct a bench trial; at the end of the trial, the court
concluded HSM was entitled to possession, rent that would have been due from December21, 2010,
until January 25, 2011, and attorney’s fees. The signed judgment reflects the trial court’s
conclusions.
In their first issue, the Daftarys argue the trial court lacked jurisdiction to consider the
forcible-detainer action because the case became moot when they tendered possession of the
premises on the morning of trial. Appellate courts are prohibited from deciding moot controversies.
See Sepulveda v. Medrano, 323 S.W.3d 620, 625 (Tex. App.—Dallas 2010, no pet.). Ajusticiable
controversy between the parties must exist at every stage of the legal proceedings, including the
appeal, or the case is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). If a case
becomes moot, the appellate court must vacate any judgment or order the trial court to dismiss the
case. City ofDallas v. Woodfield, 305 S.W.3d 412,416 (Tex. App.—Dallas 2010, no pet.). When,
as here, possession changes hands and there is no basis for a claim of right to possession, the issue
of possession becomes moot. See Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787
(Tex. 2006).
However, the entire case only becomes moot if a controversy ceases to exist or the parties
lack a legally cognizable interest in the outcome. See Allstate Ins. Co. v. Haliman, 159 S.W.3d 640,
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642 (Tex. 2005). A dispute over attorney’s fees is a live controversy and may prevent an appeal
from being moot. See id. Likewise, a dispute regarding damages is a live controversy and may
prevent a case from becoming moot. See Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d
826, 830 (Tex. App.—Austin 2003, pet. denied).
Before hearing the Daftarys’ appeal de novo from thejustice court, the trial court determined
it would consider the forcible-detainer case as well as “any remedy available under TRCP 752.”
Pursuant to rule 752, HSM could recover its “damages, if any, suffered for. . . defending possession
of the premises during the pendency of the appeal.” TEx. R. CIV. P. 752. Damages include “loss of
rentals during the pendency of the appeal and reasonable attorney fees in the justice and county
courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property
Code have been met. Only the party prevailing in the county court shall be entitled to recover
damages against the adverse party.” TEX. R. CIV. P. 752.
While the issue of possession became moot when the Daftarys vacated the property, the entire
case was not moot because HSM’s claims for damages and attorney’s fees continued to present live
controversies. Because live claims were presented to the trial court, it did not err by concluding the
case was not moot and it had jurisdiction. We overrule the Daftarys’ first issue.
The Daftarys also argue the evidence was legally insufficient to support the damages
awarded. The proper measure of damages in a forcible-detainer appeal is the reasonable rental value
of the property during the pendency of the appeal. Hart v. Keller Props., 567 S .W.2d 888, 889 (Tex.
Civ. App.—Dallas 1978, no writ); Koelzer v. Pizzirani, 718 S.W.2d 420, 422 (Tex. App.—Fort
Worth 1986, no writ).
The trial court’s judgment states HSM “offered evidence at trial proving their entitlement to
their damages in the form of the rent and other charges due under the Lease, from the date they were
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entitled to possession of the premises, December 21, 2009 [sic] through the date of trial on January
25, 201 1.” The trial court concluded the proper amount of damages was $26,000.96.
HSM presented no evidence at trial showing it was entitled to $26,000.96. Moreover, it did
not present any evidence showing the reasonable rental value of the property during the pendency
of the appeal. The only evidence relating to the rental value of the property was testimony that the
fair market rental value for the property was $12.00 per square foot or $12.50 per square foot in July
2008. However, no evidence showed whether the fair market rental value was the same from
December 2009 to January 2011 (the time period the appeal was pending) as it was in July 2008.
Because HSM only offered evidence about the fair market rental value as of July 2008 and failed to
offer any evidence showing the reasonable rental value during the pendency of the appeal, the trial
court erred by awarding damages pursuant to rule 752. We sustain the Daftarys’ second issue.
In their third issue, the Daftarys argue the trial court erred by awarding attorney’s fees to
HSM. Rule 752 and Section 24.006 of the property code require, among other things, the party
prevail in the trial court before it can recover attorney’s fees. See TEx. R. CIV. P. 752; TEx. PROP.
CODE ANN. § 24.006(b) (West 2000). Because the trial court lackedjurisdiction to consider the issue
of possession and the trial court erred by awarding damages to HSM, HSM was not a prevailing
party. Therefore, HSM did not satisfy the terms of section 24.006(b) or rule 752 and the trial court
erred by awarding attorney’s fees to HSM. We sustain the Daftarys’ third issue.
During oral argument, the attorney for HSM argued $26,000.96 was the amount the Daftarys paid into the registry of the court during the time
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period they were holding over in lieu of paying rent directly to HSM. He asserted that the rent statements from this period of time were exhibits
admitted during the proceeding, and when added together, those rent statements would support the award of $26,000.96. However, the rent statements
in the record do not include any for the holdover period.
We offer no opinion about whether the fair market rental rate from December 2010 until January 2011 was more than, less than, or equal to
$12.00 per square foot or $12.50 per square foot. We only state there was no evidence in this record regarding the fair market rental rate during that
period of time.
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In their final two issues, the Daftarys argue the trial court abused its discretion by severing
the forcibledetainer partial judgment and, because there was no valid severance, there was no final
judgment in this case. However, the Daftarys failed to perfect an appeal of these issues. A party
seeking to alter a trial court’s order must file a notice of appeal. TEx. R. App. P. 25.1(c). The notice
of appeal filed by the Daftarys states it is their “intent to appeal the trial court’s Partial Judgment
signed on January 25, 2011.” The Notice of Appeal does not state their intent to appeal the trial
court’s Order on Plaintiff’s Motion to Sever dated March 1, 2010. Therefore, the Daftarys failed to
invoke our jurisdiction over issues related to the trial court’s severance order.
Even if we were to assume the Daftarys’ fourth and fifth issues are properly before the Court,
we conclude the trial court did not err by granting HSM’s motion to sever. The Daftarys argue the
trial court abused its discretion because HSM originally agreed to consolidate all of the cases
between the parties and then, in its motion to sever, failed to show good cause for relief from its
procedural stipulation to consolidate all claims.
5 To support their argument that HSM was required
to show good cause to withdraw the stipulation, the Daftarys cite Valero Eastex Pipeline Co. v.
Jarvis, 990 S.W.2d 852, 856 (Tex. App.—Tyler 1999, pet. denied). Although the Jarvis court did
state that a trial court should enter stipulations “unless good cause is shown for rejecting them,” the
Jarvis court also stated “[sjtipulations may be modified or withdrawn, however, at the discretion of
the trial court.” Assuming HSM did stipulate to the consolidation, Jarvis does not require it to show
good cause to withdraw.
The only evidence in the record indicating HSM may have agreed to consolidate the claims is a docket entry from May ii, 2010, stating:
MOTION CONSOLIDATE
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Party: PLAINTIFF PRESTONWOOD MARKET SQUARE LTD; DEFENDANT DAFTARY, GAUTAM C; DEFENDANT DAFTARY,
SHWETA G
AGREED EC057J015779129
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For purposes of this opinion, we will assume HSM did agree to the consolidation.
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Rule 41 provides that “[amy claim against a party may be severed and proceeded with
separately.” TEx. R. CIV. P. 41. Severance is appropriate if: (1) the controversy involves more than
one cause of action, (2) the severed claim is one that could be asserted independently in a separate
lawsuit, and (3) the severed actions are not so interwoven with the other claims that they involve the
same facts and issues. F.F.P. Operating Partners, L.P. v, Duenez, 237 S.W,3d 680,693 (Tex. 2007)
(quoting Guaranty Fed. v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990)). The
controlling reasons for a severance are to do justice, avoid prejudice, and further convenience.
Duenez, 237 S.W.3d at 693. The Daftarys do not argue the controversy does not involve more than
one cause of action, the severed claim could not have been asserted independently, or the forcible
detainer action is so interwoven with the other claims that they all involve the same facts and issues.
Likewise, the Daftarys do not assert severance would not be in the interest ofjustice or would create
prejudice or inconvenience. After reviewing the record, we conclude the trial court did not abuse
its discretion by granting HSM’ s motion to sever. See id. We overrule the Daftarys’ fourth and fifth
issues.
We vacate the trial court’s judgment awarding possession of the premises to HSM and
dismiss HSM’s cause of action for possession of the premises. Additionally, we reverse the trial
court’s judgment awarding damages and attorney’s fees to HSM, and render a take-nothing judgment
on HSM’s requests for damages and attorney’s fees. We lack jurisdiction over the Daftarys’
complaints about the trial court’s order severing the forcible-detainer partial judgment; thus we
dismiss those complaints. We express no opinion on the merits of the parties’ other claims against
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each other; our opinion is limited to the issues relevant to a
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Qttnirt nf Appeat
JiiftI! Oiatrirt nf ixai at Oattaa
JUDGMENT
GAUTAM C. DAFTARY AND SHWETA Appeal from the County Court at Law No. 4
G. DAFTARY, Appellants of Dallas County, Texas. (Tr.Ct.No. Cause
No. CC-i 1-01529-D).
No. 05-i i-00673-CV V. Opinion delivered by Justice Moseley,
Justices Fillmore and Myers participating.
PRESTONWOOD MARKET SQUARE,
LTD. AND NEW PEPPER SQUARE S/C,
LTD., Appellees
Based on the Court’s opinion of this date, the trial court’s January 25, 2011 Partial
Judgment awarding possession of the premises located at 14902 Preston Road, Suite 401, Dallas,
Texas 75254 (Premises) to appellees Prestonwood Market Square, Ltd. and New Pepper Squares
S/C, Ltd. is VACATED and appellees’ claim for Possession of the Premises is DISMISSED.
The trial court’s Partial Judgment that appellees “have and recover damages from
[appellants Gautam C. Daftary and Shweta G. Daftary], jointly and severally, the sum of
$26,000.96 in damages, attorneys’ fees in the amount of $82,250.20, postjudgment interest on the
total sum at the annual rate of five percent (5%) and all recoverable costs of court” is
REVERSED and judgment is RENDERED that appellees Prestonwood Market Square, Ltd.
and New Pepper Squares S/C, Ltd. take nothing against appellants Gautam C. Daftary and
Shweta G. Daftary on appellees’ requests for damages and attorney’s fees.
It is ORDERED that appellants Gautam C. Daftary and Shweta G. Daftary recover their
costs of this appeal from appellees Prestonwood Market Square, Ltd. and New Pepper Squares
S/C, Ltd.
Judgment entered February 1, 2013.