Texas Judiciary Online - HTML Opinion

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Opinion issued June 7,=20 2007

In The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-04-00586-CV

HONG = KONG=20 DEVELOPMENT, INC., HAI DU DUONG, and PHUONG TRUONG TU,=20 Appellants

KIM LOAN = NGUYEN=20 D/B/A ALPHA BAKERY, Appellee

On Appeal from County Civil = Court at Law=20 No. 1

Harris = County,=20 Texas

Trial = Court Cause=20 No. 802024 (Consolidated with Cause No. = 793,769)

OPINION ON=20 REHEARING

Appellee,=20 Kim Loan Nguyen ("Nguyen"), has filed a motion for rehearing of = the=20 Court's opinion dated November 9, 2006. Appellants, Hong Kong = Development,=20 Inc. ("HKDI"), Hai Du Duong ("Duong"), and Phuong Truong Tu ("Tu") = (collectively, "appellants") have responded to that motion. After = due=20 consideration, the Court grants Nguyen's motion for rehearing, = withdraws=20 its judgment and opinion of November 9, 2006, and issues this = opinion and=20 judgment in their stead.

Appellants=20 appeal from a judgment, rendered upon a jury verdict, in favor of = Nguyen=20 for $15,312.58 in actual damages against HKDI and Duong, jointly = and=20 severally; $200,000 in punitive damages against each of HKDI and = Duong;=20 and $79,900 in attorney's fees against all three appellants, = jointly and=20 severally. We determine (1) over what appellate challenges we have = jurisdiction; (2) whether the trial court erred in consolidating = an appeal=20 pending before it in a forcible-detainer suit with a suit in which = Nguyen,=20 invoking the court's original jurisdiction, had asserted various = tort and=20 declaratory claims; (3) whether the error in consolidating the = suits, if=20 any, was rendered moot; (4) whether the evidence is legally = sufficient to=20 support liability, actual damages, and punitive damages against = HKDI and=20 Duong; (5) whether Tu had a duty to indemnify Nguyen for her = attorney's=20 fees; and (6) whether the trial court erred in rendering judgment = for=20 attorney's fees that Nguyen's expert did not segregate among = claims and=20 defenses for which fees were recoverable and those for which they = were=20 not. We reverse the judgment in part, affirm it in part, and = remand the=20 cause for limited proceedings.

Background

Tu and=20 Nguyen were sisters-in-law. Tu, Nguyen, and Nguyen's sister = entered into a=20 partnership to run a bakery and sandwich shop called Alpha Bakery. = In=20 February of that same year, Tu and Nguyen leased space for their = business=20 in HKDI's shopping mall. The lease that they executed with HKDI = ("the=20 lease agreement") listed Tu and Nguyen as "Tenant" and contained = the=20 following provisions:

24. = ASSIGNMENT=20 AND SUBLETTING BY TENANT

24.1 Tenant=20 shall not assign this Lease, or any interest therein, = . . .=20 without first obtaining the written consent of Landlord. = . . .=20 Any assignment . . . without the prior written consent = of=20 Landlord shall be void and shall, at the option of Landlord, = terminate=20 this Lease. This Lease shall not, nor shall any interest therein, = be=20 assignable, as to the interest of Tenant, by operation of law, = without the=20 prior written consent of Landlord. However, it is further = understood and=20 agreed that Tenant shall not sell, convey, or assign any interest = in the=20 corporation [sic] without prior written approval from Landlord, = and if=20 Landlord does not agree to the sale, conveyance or assignment of = the=20 corporation [sic], Landlord may, at Landlord's option, terminate = this=20 Lease.

. . . .

57.=20 MISCELLANEOUS

57.2=20 Acceptance of Rental by Landlord from Tenant or any assignee, = subtenant or=20 other successor in interest of Tenant, or the payment or tender of = any=20 Rental to Landlord, with or without notice, shall never be = construed as a=20 waiver of any breach of any term, condition or covenant of this = Lease. The=20 failure of Landlord to declare any Event of Default upon the = occurrence=20 thereof, or any delay by Landlord in taking action with respect = thereto=20 shall not waive such default, but Landlord shall have the right to = declare=20 such default at any time and to take such action as may be = authorized=20 hereunder to the extent herein provided.

Duong,=20 HKDI's president and owner, signed the lease agreement on behalf = of=20 HKDI.

Tu's and=20 Nguyen's relationship soured a few years later, about the time = that Nguyen=20 and her husband, Tu's brother, began divorce proceedings. The = partners'=20 dispute led to a lawsuit ("the partnership suit"), and the = partnership=20 eventually went into receivership. The jury in the partnership = suit=20 awarded Nguyen and her sister, also a partner, 70% of the = partnership;=20 awarded Tu 30% of the partnership; and awarded actual damages to = Nguyen=20 and attorney's fees to Nguyen and her sister.^{=20
(1)} In a separate receivership sale of Alpha Bakery, = Nguyen=20 purchased the business. Final paperwork for the sale was drawn up, = including a contract assigning Tu's lease interest to Nguyen ("the = lease=20 assignment"), as well as a contract assigning Tu's partnership = interest to=20 Nguyen ("the partnership assignment"). No one obtained HKDI's = consent to=20 the lease assignment, despite the lease agreement's requirement = that=20 HKDI's written consent be obtained as a precondition to any = assignment of=20 the leasehold interest. Nonetheless, Nguyen and Tu signed the = documents,=20 including the lease assignment.

In a=20 nutshell, Nguyen's position in the current suit was that she and = Tu had=20 signed the lease assignment without HKDI's written consent under = duress=20 because the trial court in the partnership suit had ordered them = to sign=20 it under threat of contempt. She also alleged that Tu's counsel in = the=20 partnership suit, who had represented HKDI in other matters, had = implied=20 in the partnership suit that he was representing both Tu and HKDI = and that=20 HKDI would not object to the assignment. Nguyen also took the = position in=20 the current lawsuit that Tu, HKDI, and Duong had conspired, for = various=20 reasons, to have the parties execute the lease assignment without = first=20 obtaining HKDI's written consent so that Nguyen could be declared = in=20 default, HKDI could evict her, and Tu could open a competing = restaurant in=20 the same mall. HKDI, Duong, and Tu disputed the validity of = Nguyen's=20 theories.

In May=20 2003, HKDI notified Nguyen and Tu that they were in default under = the=20 lease because HKDI's consent had not been obtained to the lease = assignment=20 and instructed them to vacate the premises. Later that month, = Nguyen sued=20 HKDI, Duong, and Tu in Harris County Civil Court at Law No. 3 = ("the tort=20 suit").^{=20
(2)} Nguyen (1) sought a declaration that the lease = assignment=20 from Tu to Nguyen was not a breach of the lease agreement; (2) = asserted a=20 cause of action for breach of fiduciary duty against Tu; (3) = asserted a=20 cause of action for conspiracy against all appellants, alleging = that they=20 had conspired in order for Tu to run Nguyen's restaurant out of = business=20 so that Tu could operate an allegedly competing restaurant within = Hong=20 Kong Market; and (4) sought actual damages of "less than = $100,000,"=20 exemplary damages, attorney's fees, and injunctive relief. Two = months=20 later, Nguyen filed a first supplemental petition in the tort = suit,=20 seeking a declaration--as an apparent alternative to a declaration = that=20 the lease assignment had not breached the lease agreement--that = the lease=20 assignment was void for having been executed under the "extreme = duress" of=20 the threat of contempt in the partnership suit. All appellants = answered,=20 and HKDI and Duong asserted a counter-claim against Nguyen for = sanctions=20 for the filing of a frivolous lawsuit.

In July=20 2003, HKDI filed suit, against both Tu and Nguyen, for forcible = detainer=20 in a Harris County justice of the peace court, seeking possession = of the=20 leasehold property ("the forcible-detainer suit"). See = Tex. Prop.=20 Code Ann. =A7 24.002 (Vernon 2000). Although the record does not = show how=20 the justice court disposed of the forcible-detainer suit, HKDI = asserts,=20 without dispute, that it confessed judgment and then immediately = appealed=20 to County Civil Court at Law No. 1.^{=20
(3)} See Tex. R. App. P. 38.1(f) ("In a civil = case, the=20 court will accept as true the facts stated [in the appellant's = brief]=20 unless another party contradicts them."); Mullins v. = Coussons,=20 745 S.W.2d 50, 50 (Tex. App.--Houston [14th Dist.] 1987, no writ) = (holding=20 that rendition of agreed judgment in justice court in = forcible-detainer=20 suit does not deprive county court of jurisdiction to hear case, = when=20 appealed, in trial de novo). Both Tu and Nguyen = answered=20 in the county civil court at law in the forcible-detainer suit. On = October=20 2, 2003, Nguyen asserted counter-claims in the forcible-detainer = suit=20 against HKDI, cross-claims against Tu, and "cross-claims"--which = were=20 actually third-party claims--against Duong, who had theretofore = not been a=20 party in the forcible-detainer suit.^{=20
(4)} Nguyen alleged (1) that Tu and Duong had tortiously=20 interfered with her contractual relations; (2) that Tu had = breached her=20 fiduciary duty to Nguyen; (3) that all appellants had unfairly = competed=20 with her; and (4) that all appellants had conspired to evict her. = On her=20 counter-, cross-, and third-party claims in the forcible-detainer = suit,=20 Nguyen sought actual damages of "less than $100,000," exemplary = damages,=20 and attorney's fees. HKDI answered Nguyen's counter-claims against = it, but=20 Duong did not. Although the clerk's record does not show this, = HKDI and=20 Duong assert on appeal, without contradiction by Nguyen, that = Nguyen never=20 served Duong on her third-party claim. See Tex. R. App. = P.=20 38.1(f).

On October=20 10 and 15, 2003, respectively, Tu and HKDI moved in the = forcible-detainer=20 suit to strike or to sever Nguyen's counter-claims, cross-claims, = and=20 third-party claims, arguing that the county civil court at law had = no=20 subject-matter jurisdiction to consider these matters in a=20 forcible-detainer suit. On October 16, 2003, Nguyen moved in the=20 forcible-detainer suit to consolidate the tort suit and the=20 forcible-detainer suit, which motion HKDI opposed in writing, = while also=20 reurging its earlier-filed motion to strike or to = sever.

In the=20 meantime, on October 16, 2003 in the forcible-detainer suit, = Nguyen filed=20 her first amended counter-claim, cross-claim, and third-party = claim, this=20 time omitting Duong as a named party. This amendment occurred = before the=20 court in the forcible-detainer suit had ruled on Nguyen's motion = to=20 consolidate.

On October=20 23, 2003, the trial court in the forcible-detainer suit signed an = order=20 consolidating the two lawsuits and ordering the tort suit = transferred to=20 County Civil Court at Law No. 1, the court to which the = forcible-detainer=20 suit had been appealed ("the consolidated suit"). From that point = forward,=20 Nguyen supplemented her petition once on the day that trial began, = and she=20 was twice granted leave, over HKDI's and Duong's various = objections, to=20 conform the pleadings to the evidence. One of these post-trial = amendments=20 re-added Duong as a third-party defendant to Nguyen's third-party = claims=20 that had been asserted in the forcible-detainer suit before = consolidation.=20 After consolidation, Tu also asserted a counter-claim and a = cross-claim=20 against Nguyen for indemnity based on a provision in the lease=20 assignment.

By virtue=20 of her pleadings filed in the separate suits before consolidation, = and by=20 virtue of the pre-trial and post-trial amendments that the trial = court=20 allowed in the consolidated suit, Nguyen pleaded the following = claims,=20 requests for relief, and defenses in the consolidated suit:^{=20
(5)}

a = declaration that the lease assignment from Tu to Nguyen was not a = breach=20 of the lease agreement with HKDI;

a = declaration--as an apparent alternative to a declaration that the = lease=20 assignment had not breached the lease agreement--that the lease = assignment=20 was void for having been executed under the "extreme duress" of = the threat=20 of contempt in the partnership suit;

breach of=20 fiduciary duty by Tu;

conspiracy=20 against all appellants, asserting that they had conspired to evict = her;

tortious=20 interference with contractual relations by Tu and = Duong;

unfair=20 competition against all appellants;

indemnity=20 against Tu, under theories that Tu had breached a contract and = that Tu=20 owed indemnity for attorney's fees under the documents signed in = the=20 partnership suit; and

waiver and=20 estoppel, as defenses to HKDI's position that it was entitled to=20 possession because Nguyen had breached the lease agreement with = HKDI by=20 virtue of the lease assignment.

Not all of=20 the claims went to the jury, however. The pertinent jury questions = and=20 answers were as follows:

#	Question	Answer
1	Whether any of=20 the following excused the lease assignment, executed without = HKDI's=20 prior written consent, from Tu to Nguyen:=20 a.=20 duress b.=20 waiver c.=20 estoppel	a. Yes=20 b.=20 Yes c.=20 Yes
2	Whether HKDI=20 breached the lease agreement	No
3	--	--
4	Whether Tu=20 breached her fiduciary duty to Nguyen	Yes
5	What=20 the damages that arose from Tu's breach of fiduciary duty=20 were	$0.00
6	Whether Duong=20 wrongfully interfered with Nguyen's contractual = relations	Yes
7	What=20 the damages that arose from Duong's tortious interference=20 were	Nguyen's costs=20 to defend her right to the leased premises: = $49,266.66 Nguyen's past=20 mental anguish: $15,000.00
8	Whether Duong=20 was part of a conspiracy that damaged Nguyen (not predicated = on any=20 question)	Yes
9	Whether HKDI=20 was part of a conspiracy that damaged Nguyen (not predicated = on any=20 question)	Yes
10	Whether Tu was=20 part of a conspiracy that damaged Nguyen (not predicated on = any=20 question)	No
11	Whether clear=20 and convincing evidence showed that Duong's malice harmed = Nguyen=20 (predicated on question 8)	Yes
12	--	--
13	What=20 Nguyen's attorney's fees were (predicated on question = 11)	for=20 preparation and trial: $73,900.00 for=20 post-trial motions: $6,000.00 for=20 appeals to higher courts: $0.00
14	--	--

In the=20 punitive-damages phase of trial, the jury awarded Nguyen $1 = million=20 against Duong and the same amount against HKDI.

Nguyen=20 moved for judgment on the verdict; HKDI and Duong filed objections = to=20 Nguyen's motion for entry of judgment; and HKDI and Duong filed a=20 competing motion for entry of judgment, requesting that Nguyen = take=20 nothing on her claims and that HKDI be awarded possession.^{=20
(6)} Nguyen's motion for entry of judgment was implicitly = granted, and HKDI and Duong's objections and motion for judgment = were=20 implicitly overruled, by entry of judgment that

declared=20 that the lease assignment between Tu and Nguyen did not breach the = lease=20 agreement with HKDI;

declared=20 that Tu had to indemnify Nguyen for Nguyen's attorney's fees;=20

awarded=20 Nguyen possession of the leased premises;

awarded=20 Nguyen $15,312.58 in actual damages and interest against HKDI and = Duong,=20 jointly and severally;^{=20
(7)}

awarded=20 Nguyen $79,900 in attorney's fees against all appellants, jointly = and=20 severally;

reduced the=20 exemplary damages and awarded $200,000 in exemplary damages = against each=20 of HKDI and Duong; and

rendered a=20 take-nothing judgment on all appellants' claims against=20 Nguyen.

See=20 Tex. R. App. P. 33.1(a)(2)(A) (allowing error to be preserved = by=20 express or implied ruling on motion); First Nat'l Indem. Co. = v. First=20 Bank & Trust of Groves, Tex., 753 S.W.2d 405, 407 (Tex.=20 App.--Beaumont 1988, no writ) (holding that appellant failed to = preserve=20 challenge to rendition of unpleaded interest rate when it failed = to except=20 to opposing party's motion for entry of judgment requesting = unpleaded=20 interest rate or to move to limit judgment to pleaded rate); = cf. Lenz=20 v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002) (holding that appellant = preserved complaint raised in pre-judgment JNOV because trial = court=20 implicitly ruled on JNOV motion by virtue of substance of its = judgment=20 that was later rendered); Second Injury Fund v. Tomon, = 853 S.W.2d=20 654, 659 (Tex. App.--Houston [14th Dist.] 1993, writ denied) = (noting that=20 finding on matter omitted from jury charge would not be deemed in=20 plaintiff's favor when defendant objected at first opportunity, = which was=20 at hearing on plaintiff's motion to enter judgment). After = judgment, Tu=20 moved for JNOV, as did HKDI and Duong. HKDI and Duong's = post-judgment JNOV=20 motion was heard by the trial court, but no order disposing of it = appears=20 in the record.^{=20
(8)}

HKDI and Duong's Appeal

As=20 preliminary matters on appeal, HKDI and Duong raise various = challenges=20 that they assert concern jurisdictional matters relating to = allegations in=20 the forcible-detainer suit that were carried forward after = consolidation.=20 Alternatively, they raise other challenges that they assert = concern=20 non-jurisdictional matters relating to allegations in the tort = suit that=20 were carried forward or added after consolidation.

A.=20 Our Appellate Jurisdiction to Consider HKDI and Duong's Various=20 Challenges

Determining=20 which of HKDI and Duong's various appellate challenges we may = consider is=20 complicated by the facts that the two suits were consolidated; = that in one=20 suit, the county court exercised appellate jurisdiction; that in = the other=20 suit, the county court exercised original jurisdiction; that in = both=20 suits, the parties sought, among other things, a determination of = the=20 right to possession; that the suits were tried together after=20 consolidation; and that one judgment was rendered in the = consolidated=20 cause and included, among other determinations, a determination of = the=20 right to possession. We first examine our appellate jurisdiction = over=20 judgments in suits in which the county court exercises appellate=20 jurisdiction (specifically, forcible-detainer suits), our = appellate=20 jurisdiction over judgments in suits in which the county court = exercises=20 original jurisdiction, and the effect on our appellate = jurisdiction of the=20 consolidation here.

1.=20 Our Jurisdiction in Appeals from a Forcible-Detainer Judgment in = County=20 Court

On appeal=20 from a forcible-detainer judgment, we have no jurisdiction to = consider the=20 issue of possession if, as is the case here, the disputed premises = were=20 used for commercial purposes. Tex. Prop. Code Ann. =A7 24.007 = (Vernon 2000)=20 ("A final judgment of a county court in an eviction suit may not = be=20 appealed on the issue of possession unless the premises in = question are=20 being used for residential purposes only."); Carlson's Hill = Country=20 Beverage, L.C. v. Westinghouse Rd. Joint Venture, 957 S.W.2d = 951,=20 952-53 (Tex. App.--Austin 1997, no pet.). The prohibition against=20 considering possession includes consideration of any finding = "essential to=20 the issue of,"^{=20
(9)} "dependent on,"^{=20
(10)} or "primarily concerned with the issue of"^{=20
(11)} possession. In sum, had the cases not been = consolidated, we=20 would have been able to review only limited issues in an appeal of = the=20 judgment rendered in the forcible-detainer suit.

2.=20 Our Jurisdiction in Appeals from Other Judgments in County=20 Court

In=20 contrast, our appellate jurisdiction is generally not so limited = in an=20 appeal of a county court judgment outside the forcible-detainer = context.=20 See Tex. Gov't Code Ann. =A7 22.220(a) (Vernon 2004) = ("Each=20 court of appeals has appellate jurisdiction of all civil cases = within its=20 district of which the district courts or county courts have = jurisdiction=20 when the amount in controversy or the judgment rendered exceeds = $100,=20 exclusive of interest and costs."). Therefore, had the cases not = been=20 consolidated, we would have had plenary appellate jurisdiction to = review=20 virtually any issue asserted to challenge a judgment rendered in = the tort=20 suit.

3.=20 The Effect of Consolidation on Our Appellate=20 Jurisdiction

Our=20 jurisdiction to consider HKDI and Duong's various appellate = challenges is=20 affected by the consolidation of the forcible-detainer and tort = suits. Two=20 types of consolidation exist: true consolidation and consolidation = for=20 trial. See 3 Roy W. McDonald & Elaine A. Grafton = Carlson,=20 Texas Civil Practice =A7 17:25, at 775 (2d ed. 2000) [hereinafter = "McDonald=20 & Carlson"]; see also 7 William V. Dorsaneo III, = Texas=20 Litigation Guide =A7 112.01[1][a] (1999) [hereinafter "Dorsaneo"]. = True=20 consolidation, as occurred here, involves merging separate = suits=20 into a single proceeding under one docket number. McDonald = &=20 Carlson, supra, at 775. "'When actions are = properly=20 consolidated they become merged and are thereafter treated as one=20 suit. . . .'" Perry v. Del Rio, 53 S.W.3d = 818, 825=20 n.6 (Tex. App.--Austin 2001) (quoting 1 Tex. Jur. 3d = Actions =A7 77=20 (1993)), pet. dism'd, 66 S.W.3d 239 (Tex. 2001); see = Rust v.=20 Tex. & Pac. Ry. Co., 107 Tex. 385, 387, 180 S.W. 95, 95 = (1915)=20 ("In the present case, the order of consolidation having been = properly=20 made, there remained no separable cause of action. It became but = one suit=20 . . . ."). Therefore, when a court orders true=20 consolidation of two or more cases, the actions are merged and = thereafter=20 proceed as a single action. See Rust, 107 Tex. at 387, = 180 S.W.=20 at 95; Perry, 53 S.W.3d at 825 n.6; McDonald & = Carlson,=20 supra, at 775. Here, a single judgment was = rendered=20 after consolidation, and it is that judgment that HKDI and Duong = appeal.^{=20
(12)}

We hold as=20 follows. In this appeal from the single judgment in the = consolidated suit,=20 we have the limited appellate jurisdiction provided by Texas = Property Code=20 section 24.007 to consider challenges to matters raised = solely by=20 the forcible-detainer pleadings. See Tex. Prop. Code Ann. = =A7 24.007. In contrast, we have plenary appellate = jurisdiction to=20 consider challenges to matters raised by the tort-suit pleadings,=20 regardless of whether those matters were also raised by the=20 forcible-detainer pleadings. For each of HKDI and Duong's = challenges=20 discussed below, we state separately whether we have jurisdiction = to=20 consider them.

B.=20 The Counter-Claim and Third-Party Claim Asserted in the=20 Forcible-Detainer Suit Against HKDI and Duong Before=20 Consolidation

In issue=20 one, HKDI and Duong argue that the trial court lacked = subject-matter=20 jurisdiction to adjudicate Nguyen's counter-claims against HKDI = and her=20 third-party claims against Duong that she had asserted in the=20 forcible-detainer suit before consolidation. Specifically, they = argue that=20 the county civil court at law, sitting as an appellate court in = the=20 forcible-detainer suit, lacked subject-matter jurisdiction to = consider the=20 counter-claims and third-party claims because those claims (1) = exceeded=20 the justice court's jurisdiction, (2) fell outside the scope of = claims=20 allowed in a forcible-detainer suit, and (3) were impermissibly = raised for=20 the first time on appeal to the county civil court at law. = Additionally,=20 HKDI and Duong argue that the trial court lacked subject-matter=20 jurisdiction to award actual damages over the justice court's = $5,000=20 damages cap, and to award exemplary damages at all, in the=20 forcible-detainer suit. For these reasons, HKDI and Duong argue = that the=20 trial court erred in not severing or striking the complained-of=20 counter-claims and third-party claims from the forcible-detainer = suit=20 before consolidation. We have jurisdiction to consider these = challenges=20 because, although they concern matters in the pre-consolidation=20 forcible-detainer suit, they relate to the county civil court at = law's=20 subject-matter jurisdiction and thus do not concern the issue of=20 possession. See Gibson v. Dynegy Midstream Servs., L.P., = 138=20 S.W.3d 518, 521 (Tex. App.--Fort Worth 2004, no pet.); Rice v. = Pinney, 51 S.W.3d 705, 708 (Tex. App.--Dallas 2001, no pet.)=20 ("Section 24.007 does not preclude appellate review of a county = court at=20 law's subject matter jurisdiction" because such challenges concern = county=20 court's "authority to decide this case regardless of how it = resolved the=20 possession issue.").

1.=20 What May Be Determined in a Forcible-Detainer = Suit

"The=20 procedure to determine the right to immediate possession of real = property,=20 if there was no unlawful entry, is the action of forcible = detainer."=20 Rice, 51 S.W.3d at 709; see Tex. Prop. Code Ann. = =A7=20 24.002 (defining forcible detainer). "To prevail in a forcible = detainer=20 action, a plaintiff is not required to prove title but is only = required to=20 show sufficient evidence of ownership to demonstrate a superior = right to=20 immediate possession." Ward v. Malone, 115 S.W.3d 267, = 270 (Tex.=20 App.--Corpus Christi 2003, pet. denied). For these reasons, "a = judgment of=20 possession in a forcible detainer action is a determination only = of the=20 right to immediate possession and does not determine the ultimate = rights=20 of the parties to any other issue in controversy relating to the = realty in=20 question." Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex. = App.--Corpus=20 Christi 2002, no pet.); see Martinez v. Beasley, 572 = S.W.2d 83,=20 85 (Tex. Civ. App.--Corpus Christi 1978, no writ). Prior to = consolidation,=20 the forcible-detainer suit was purely one for forcible detainer, = that is,=20 to determine the right to immediate possession.

Justice=20 courts have original jurisdiction over forcible-detainer suits. = See=20 Tex. Prop. Code Ann. =A7 24.004 (Vernon 2000); see also = Tex.=20 Gov't Code Ann. =A7 27.031(a)(2) (Vernon 2004). Any party = dissatisfied=20 with a justice-court judgment in such a suit may appeal to the = county=20 court,^{=20
(13)} in which trial is de novo. See = Tex. R.=20 Civ. P. 749. On appeal in a forcible-detainer suit, the county = court=20 exercises appellate, not original, jurisdiction. The county = court's=20 appellate jurisdiction is generally confined to the limits of the = justice=20 court (with the exception of the specific damages noted below), = and the=20 county court has no jurisdiction over a forcible-detainer appeal = unless=20 the justice court did. Ward, 115 S.W.3d at = 269.

"An action=20 of forcible entry and detainer is a special proceeding and as such = is=20 governed by the special statutes and rules applicable thereto."=20 Haginas, 163 Tex. 274, 277, 354 S.W.2d 368, 371 (1962);=20 accord Rice, 51 S.W.3d at 709. = "Forcible-entry-and-detainer=20 actions provide a speedy, summary, and inexpensive determination = of the=20 right to immediate possession of real property." Volume = Millwork,=20 Inc., 2006 WL 3628830, at *3; Meridien Hotels, Inc. v. = LHO Fin.=20 P'ship I, L.P., 97 S.W.3d 731, 737 (Tex. App.--Dallas 2003, = no pet.);=20 see McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. = 1984). The=20 Texas Rules of Civil Procedure ensure the speedy, summary, and = inexpensive=20 nature of forcible-detainer suits. See Meridien Hotels, = Inc., 97=20 S.W.3d at 737; see also Tex. R. Civ. P. 739, 740, 745, = 746, 748,=20 749 (all requiring expedited or streamlined procedures in = forcible-entry=20 and forcible-detainer suits).

Because of=20 this purpose, the sole issue to be determined in a = forcible-detainer or=20 forcible-entry suit is the entitlement to actual and immediate = possession.=20 See Tex. R. Civ. P. 746; Haginas, 354 S.W.2d at = 371.=20 Nonetheless, the rules do vest the justice or county courts in = such suits=20 with jurisdiction over a few other limited matters. For example, a = suit=20 for rent may be joined with an action for forcible entry or = detainer, as=20 long as the claim for rent falls within the justice court's = jurisdiction.=20 Tex. R. Civ. P. 738; Haginas, 354 S.W.2d at 371. = Additionally, in=20 trial de novo on appeal to the county court, "the = appellant or=20 appellee shall be permitted to plead, prove and recover his = damages, if=20 any, suffered for withholding or defending possession of the = premises=20 during the pendency of the appeal," although only the party = prevailing in=20 the county court may recover these damages. Tex. R. Civ. P. 752. = Such=20 damages include, but are not limited to, loss of rents during the = appeal's=20 pendency and reasonable attorney's fees in the justice and county = courts,=20 and the prevailing party in the county court may also recover = costs.=20 Id. The damages that may be sought under rule 752 are = only those=20 "suffered as a direct result of withholding or defending = possession."=20 Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 627 (Tex. = App.--Dallas 1991, writ denied). Under rule 752, a party may = recover the=20 specified damages "regardless of the amount so long as [the = prevailing=20 party] can prove such damages." Haginas, 354 S.W.2d at = 372. In=20 other words, in a trial de novo in a forcible-detainer = proceeding=20 on appeal in county court, a prevailing party may recover the = damages=20 allowed by rule 752 even if the amount of those damages exceeds = the=20 amount-in-controversy limit of the county court's original = jurisdiction.=20 Id.

The county=20 and justice courts lack subject-matter jurisdiction in a = forcible-detainer=20 suit to adjudicate matters other than those listed in the = immediately=20 preceding paragraphs. See, e.g., Krull v. = Somoza, 879=20 S.W.2d 320, 322 (Tex. App.--Houston [14th Dist.] 1994, writ = denied)=20 (holding that damages claims related to maintaining or obtaining=20 possession of disputed premises may be joined with = forcible-detainer suit=20 and litigated in county court, but that damages for other causes = of action=20 cannot be maintained in same suit); Hanks, 812 S.W.2d at = 627=20 (holding that county court lacked subject-matter jurisdiction over = tenant's counter-claims for wrongful retention of rental security = deposit=20 that had been asserted on appeal in forcible-detainer suit); = Rushing=20 v. Smith, 630 S.W.2d 498, 499-500 (Tex. App.--Amarillo 1982, = no writ)=20 (holding that county court lacked subject-matter jurisdiction over = cross-claims for damages to recover for certain farming work that = had been=20 done, which damages were unrelated to expenses in defending = possession, on=20 appeal in forcible-detainer suit).^{=20
(14)} This result obtains because "[t]he jurisdiction of = the=20 County Court is of a dual nature[:] one original and the other = appellate=20 from the Justice Court." Neal v. Beck Funeral = Home, 131=20 S.W.2d 778, 779 (Tex. Civ. App.--Fort Worth 1939, writ dism'd) = (holding=20 same in appeal to county court from justice court in suit other = than one=20 for forcible detainer). When a county court acquires only = appellate=20 jurisdiction in a given suit, it may not, absent authorization by = statute=20 or rule, determine any matter acquired by virtue of its original=20 jurisdiction in that same suit. See id. at = 780.

2.=20 Discussion

Prior to=20 consolidation, Nguyen alleged against HKDI and Duong in the=20 forcible-detainer suit (by counter-claim or third-party claim = asserted for=20 the first time on appeal to the county court at law) that (1) = Duong had=20 tortiously interfered with her contractual relations; (2) all = appellants=20 had unfairly competed with her; and (3) all appellants had = conspired to=20 evict her. She also sought actual damages of "less than $100,000," = exemplary damages, and attorney's fees.

Under the=20 law set out above, the county court at law, before consolidation, = had no=20 subject-matter jurisdiction over these claims because it was = exercising=20 its appellate jurisdiction over the forcible-detainer suit = appealed from=20 the justice court. None of the matters that Nguyen pleaded = concerned the=20 right to immediate possession. See Tex. R. Civ. P. 746 = (providing=20 that right to possession is sole issue determined in = forcible-detainer or=20 forcible-entry suit). Neither were they an attempt to collect = rent.=20 See Tex. R. Civ. P. 738 (allowing suit for rent to be = adjudicated=20 with forcible-detainer suit, provided that rent sought is within = justice=20 court's jurisdiction). Additionally, as she had pleaded her tort = claims,=20 Nguyen did not expressly seek, or limit her damages to, damages = "suffered=20 for withholding or defending possession of the premises during the = pendency of the appeal." Tex. R. Civ. P. 752; see Krull, = 879=20 S.W.2d at 322 (holding that, under rule 752, damages unrelated to=20 maintaining or obtaining possession of disputed premises may not = be joined=20 with forcible-detainer suit in county court). Because she did not = seek=20 rule-752 damages--which pleading would have allowed her to seek = more than=20 the $5,000 amount-in-controversy limit applicable to many appeals = from=20 justice court^{=20
(15)}--the fact that Nguyen sought up to $100,000 also = took her=20 tort claims outside of the county court's appellate jurisdiction.=20 Compare Tex. Gov't Code Ann. =A7 27.031(a)(1) (setting=20 amount-in-controversy civil jurisdiction of justice courts at = $5,000=20 maximum, excluding interest) with id.=20 =A7 25.0003(c)(1) (Vernon 2004) (setting = amount-in-controversy=20 civil jurisdiction of statutory county courts at $100,000 maximum, = excluding interest, statutory or punitive damages or penalties, = and=20 attorney's fees and costs). Finally, exemplary damages do not fall = within=20 those damages authorized in forcible-detainer suits. See = Tex. R.=20 Civ. P. 746, 752. Simply put, there is no way to construe Nguyen's = counter-claims and third-party claims that she asserted in the=20 forcible-detainer suit against HKDI and Duong before consolidation = so that=20 the county court could have exercised jurisdiction over them.^{=20
(16)}

When a=20 court lacks subject-matter jurisdiction over some claims, but not = others,=20 it should sever or dismiss those claims over which jurisdiction is = lacking. See Thomas v. Long, 207 S.W.3d 334, 338 (Tex. = 2006)=20 ("[I]t is proper for a trial court to dismiss claims over which it = does=20 not have subject matter jurisdiction but retain claims in the same = case=20 over which it has jurisdiction.") (citing Am. Motorists Ins. = Co. v.=20 Fodge, 63 S.W.3d 801, 805 (Tex. 2001)); Fandey v. = Lee, 880=20 S.W.2d 164, 169 (Tex. App.--El Paso 1994, writ denied) (indicating = in=20 dictum that counter-claims for fraud and to quiet title were = properly=20 severed from forcible-detainer suit). HKDI and Duong moved, before = consolidation, to strike or to sever all of Nguyen's claims in the = forcible-detainer suit. Although severance rulings are reviewable = for=20 abuse of discretion,^{=20
(17)} it is an inherent abuse of discretion to misapply = the=20 law--such as, for example, when a court exercises jurisdiction = over a=20 matter over which it has none. See Walker v. Packer, 827 = S.W.2d=20 833, 840 (Tex. 1992); see also Tex. Natural Res. = Conservation=20 Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (providing = that=20 question of whether court has subject-matter jurisdiction is = question of=20 law). Additionally, to the extent that the court's rulings (here, = the=20 motion to strike or to sever) allowed the exercise of jurisdiction = over=20 matters in the forcible-detainer appeal over which the court = lacked=20 jurisdiction, we review those rulings de novo. See = Tex. Dep't=20 of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. = 2004) (=20 "Appellate courts reviewing a challenge to a trial court's subject = matter=20 jurisdiction review the trial court's ruling de=20 novo.").

3.=20 Mootness

Nonetheless, the=20 jurisdictional error committed before consolidation was rendered = moot by=20 the consolidation.

"An=20 eviction suit does not bar a suit for trespass, damages, waste, = rent, or=20 mesne profits." Tex. Prop. Code Ann. =A7 24.008 (Vernon 2000). = Additionally,=20 "[a] judgment or a determination of fact or law in a proceeding in = . . . justice of the peace court is not res judicata and = does=20 not constitute a basis for estoppel by judgment in a proceeding in = a=20 . . . statutory county court." Tex. Civ. Prac. & = Rem. Code=20 Ann. =A7 31.005 (Vernon 1997). That is, a forcible-detainer = action is=20 cumulative of, not exclusive of, other remedies that a party may = have.=20 McGlothlin, 672 S.W.2d at 233; Dormady v. Dinero Land = &=20 Cattle Co., L.C., 61 S.W.3d 555, 558 (Tex. App.--San Antonio = 2001,=20 pet. dism'd w.o.j.); Rice, 51 S.W.3d at 709. "If all = matters=20 between the parties cannot be adjudicated in the justice court in = which=20 the forcible entry and detainer proceedings are pending due to the = justice=20 court's limited subject matter jurisdiction, then either party may = maintain an action in a court of competent jurisdiction for proper = relief." McGlothlin, 672 S.W.2d at 233; accord = Rushing,=20 630 S.W.2d at 500.

For these=20 reasons, a forcible-detainer suit in justice court may run = concurrently=20 with another action in another court--even if the other action = adjudicates=20 matters that could result in a different determination of = possession from=20 that rendered in the forcible-detainer suit. See Villalon v. = Bank=20 One, 176 S.W.3d 66, 70-71 (Tex. App.--Houston [1st Dist.] = 2004, pet.=20 denied) (indicating that suit to determine wrongful foreclosure, = which=20 concerned title, could have been pursued in separate proceeding=20 concurrently with forcible-detainer suit); see also Meridien = Hotels,=20 Inc., 97 S.W.3d at 738 (holding that trial court properly = issued writ=20 of mandamus to compel justice court to vacate order abating=20 forcible-detainer suit until district court--which had issued=20 interlocutory order declaring that tenants had defaulted under = lease, that=20 landlord had right to terminate lease, and that tenants no longer = had=20 right to possession--had rendered final judgment). Matters = relating to=20 possession may overlap in the two proceedings because "a judgment = of=20 possession in a forcible detainer action is a determination only = of the=20 right to immediate possession and does not determine the=20 ultimate rights of the parties to any other = issue in=20 controversy relating to the realty in question." Lopez, = 76 S.W.3d=20 at 605 (emphasis added); see, e.g., Martinez, = 572 S.W.2d=20 at 85.

Before=20 consolidation, Nguyen alleged causes of action against HKDI for = conspiracy=20 to evict her and sought up to $100,000 actual damages and = exemplary=20 damages in the tort suit. This is the same claim that Nguyen = alleged, and=20 the same damages that she sought, against HKDI and Duong in the=20 forcible-detainer suit. Accordingly, even though the county civil = court at=20 law lacked appellate jurisdiction in the forcible-detainer suit = before=20 consolidation to consider Nguyen's counter-claim against HKDI for=20 conspiracy, her third-party claim against Duong for conspiracy, = and her=20 request for many of the damages that she sought against both HKDI = and=20 Duong, the trial court had subject-matter jurisdiction to consider = those=20 claims and types of damages in the tort suit. See Tex. = Gov't Code=20 Ann. =A7 25.0003(c)(1) (setting amount-in-controversy civil = jurisdiction of=20 statutory county courts at $100,000 maximum, excluding interest, = statutory=20 or punitive damages or penalties, and attorney's fees and costs); = see=20 also McGlothlin, 672 S.W.2d at 233 (indicating that party to=20 forcible-detainer suit may concurrently pursue, in different = proceeding,=20 suit for damages); cf. Johnson v. Highland Hills Dr. = Apartments,=20 552 S.W.2d 493, 495-96 (Tex. Civ. App. 1977) (holding that holding = that=20 forcible-entry judgment was not res judicata in separate suit = between same=20 parties seeking damages for wrongful eviction and for breach of = duty to=20 provide mail facilities), writ ref'd n.r.e., 568 S.W.2d = 661 (Tex.=20 1978). Accordingly, although the county civil court at law did not = have=20 jurisdiction over this claim and certain of these damages to the = extent=20 that the court exercised its appellate jurisdiction in the = consolidated=20 suit, it had jurisdiction over these matters to the extent that it = exercised its original jurisdiction, and the post-consolidation = pleadings=20 supported that exercise of original jurisdiction.

The same=20 result obtains with respect to Nguyen's claim for tortious = interference=20 against Duong once the suits had been consolidated.^{=20
(18)} Although the county civil court at law did not have = jurisdiction over this claim to the extent that the court = exercised its=20 appellate jurisdiction, it had jurisdiction over the claim to the = extent=20 that it exercised its original jurisdiction, and the = post-consolidation=20 pleadings supported the exercise of that jurisdiction (putting = aside for=20 the moment whether the court should have allowed Nguyen to add = this claim=20 belatedly). See McGlothlin, 672 S.W.2d at 233; = Johnson,=20 552 S.W.2d at 495-96.

4.=20 Conclusion

We hold=20 that the trial court's error in failing to sever Nguyen's = counter-claims=20 and third-party claims against HKDI and Duong in the = forcible-detainer=20 suit before consolidation was rendered moot by the fact that the = same=20 court could consider these claims and damages after consolidation = by=20 exercise of its original jurisdiction that arose from the=20 tort-suit-related pleadings.

We overrule=20 this challenge under issue one.

C.=20 Consolidation

Also under=20 issue one, HKDI and Duong assert that the trial court committed=20 fundamental error by consolidating the forcible-detainer suit, in = which=20 the county court lacked appellate jurisdiction to consider the=20 counter-claims and third-party claims against them, with the tort = suit, in=20 which the county court had original jurisdiction to consider them. = HKDI=20 and Duong argue that the trial court's consolidating these suits = allowed=20 Nguyen to assert the very claims and to recover the very damages = that=20 would not have been maintainable or recoverable in the = forcible-detainer=20 suit had it not been consolidated with the tort suit. They argue = that the=20 county civil court at law had the power to exercise either = appellate or=20 original jurisdiction, but not both in the same suit. Put another = way,=20 they argue that the trial court could not do through the back door = what it=20 could not do through the front.

1.=20 Whether Consolidation is Jurisdictional

Consolidation is a=20 procedural device that a court may utilize at its discretion upon = motion,=20 upon stipulation, or sua sponte. See McDonald = &=20 Carlson, supra, at 777. Texas Rule of Civil = Procedure=20 174(a) provides:

When=20 actions involving a common question of law or fact are pending = before the=20 court, it may order a joint hearing or trial of any or all the = matters in=20 issue in the actions; it may order all the actions consolidated; = and it=20 may make such orders concerning proceedings therein as may tend to = avoid=20 unnecessary costs or delay.

Tex. R. = Civ. P.=20 174(a). Consolidation furthers judicial economy by combining = actions that=20 involve a common question of law or fact to mitigate the expense=20 associated with litigation, to eliminate the proliferation of = suits, and=20 to expedite the judicial process. See McDonald & = Carlson,=20 supra, at 776; see also Owens-Corning = Fiberglas=20 Corp. v. Martin, 942 S.W.2d 712, 716 (Tex. App.--Dallas 1997, = no=20 writ) ("In deciding whether to consolidate, the trial court must = balance=20 the judicial economy and convenience that may be gained by the=20 consolidation against the risk of an unfair outcome because of = prejudice=20 or jury confusion."). "The trial court may consolidate actions = that relate=20 to substantially the same transaction, occurrence, subject matter, = or=20 question." Martin, 942 S.W.2d at 716. Rule 174(a) "does = not=20 require that all of the questions of law or fact be common to each = of the=20 cases to be consolidated. All that is required is that the two = actions=20 involve one or more common questions of significance. This is = especially=20 true if the parties are identical." 7 William V. Dorsaneo, = supra,=20 at =A7 112.02[1]. However, if the parties and issues differ, then=20 consolidation is improper. McDonald & Carlson, = supra,=20 783-84. We review a consolidation order for abuse of = discretion.=20 Allison v. Ark. La. Gas Co., 624 S.W.2d 566, 568 (Tex.=20 1981).

HKDI and=20 Duong reason as follows. By virtue of the consolidation, the two = lawsuits=20 in this case merged and proceeded thereafter as a single action. = See=20 Perry, 53 S.W.3d at 825 n.6; Rust, 107 Tex. at 387, = 180 S.W.=20 at 95; McDonald & Carlson, supra, at 775.=20 Accordingly, Nguyen's claims against HKDI and Duong--over some of = which=20 the court in the forcible-detainer suit did not have jurisdiction = when=20 they were asserted there as cross-claims and third-party = claims--were=20 subsequently allowed to be raised in the consolidated suit by = virtue of=20 the consolidation. Consolidation in these circumstances thus = accomplished=20 what the same court, when presiding over the forcible-detainer = appeal,=20 lacked subject-matter jurisdiction to do. Thus, they conclude that = the=20 trial court lacked subject-matter jurisdiction to consolidate the=20 suits.

We=20 disagree. An order is void, among other things, if the trial court = lacks=20 subject-matter jurisdiction to render it. See = Browning v.=20 Placke, 698 S.W.2d 362, 363 (Tex. 1985) (indicating that = judgment is=20 void when, among other things, it is apparent that court rendering = judgment "had . . . no jurisdiction of the subject = matter");=20 In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (holding = that=20 order rendered after trial court's plenary jurisdiction had = expired was=20 void); cf. In re Cornyn, 27 S.W.3d 327, 332 (Tex. = App.--Houston=20 [1st Dist.] 2000, orig. proceeding) ("Mandamus lies over an = interlocutory=20 or temporary order that the court had no jurisdiction to make."). = It is=20 undisputed that each of the two county civil courts at law = involved here=20 sat in the same county; that each had subject-matter jurisdiction = over=20 forcible-detainer appeals generally; and that each also had = subject-matter=20 jurisdiction over the general categories of damage claims and = declaratory=20 relief that Nguyen sought (putting aside for a moment HKDI and = Duong's=20 challenges to the aggregate amounts in controversy). See = Tex.=20 Gov't Code Ann. =A7=A7 25.0003(a), (c)(1), 25.1031(a), 25.1032(a) = (Vernon=20 2004).

When the=20 transferee county court has subject-matter jurisdiction over the = matters=20 sought to be transferred to it in a consolidation (which the = county civil=20 court at law here did, in the abstract), consolidation is = generally a=20 procedural matter, rather than a jurisdictional one. Cf. = Montgomery v.=20 Willbanks, 202 S.W.2d 851, 853 (Tex. Civ. App.--Fort Worth = 1947, writ=20 ref'd n.r.e.) ("There is no lack of jurisdiction involved here, = because=20 the district court acquired jurisdiction of the issues presented = in the=20 two cases as they were filed, and did not lose jurisdiction simply = because=20 he ordered them tried together."); McNeny v. R.R. Comm'n of = Tex.,=20 96 S.W.2d 96, 98 (Tex. Civ. App.--Austin 1936, no writ) = (indicating that=20 question of joinder is not jurisdictional, and analogizing to=20 consolidation); cf. also Allison, 624 S.W.2d at 568=20 (indicating that joinder and consolidation rulings are = reviewed for=20 abuse of discretion). Moreover, "[i]t is the general rule that = once=20 jurisdiction is lawfully and properly acquired, no subsequent fact = or=20 event in the particular case serves to defeat the jurisdiction."=20 Haginas, 163 Tex. at 278, 354 S.W.2d at 371.

Accordingly, we hold=20 that the trial court had subject-matter jurisdiction to = consolidate the=20 forcible-detainer and tort suits, that its order consolidating = them was=20 thus not void, and that the trial court was not divested of = jurisdiction=20 over the consolidated suit simply because the pre-consolidation = suits had=20 involved appellate and original jurisdiction, respectively. = See=20 Williams v. Carter, 176 S.W.2d 580, 582 (Tex. Civ. = App.--Galveston=20 1943, writ ref'd w.o.m.) (holding that trial court did not lose=20 jurisdiction over two suits--in one of which it exercised = appellate=20 jurisdiction, and in the other of which it exercised original=20 jurisdiction--simply by having consolidated them); see also=20 Montgomery, 202 S.W.2d at 853 (in reviewing judgments in two = cases=20 consolidated for trial--when one suit involved trial court's = appellate=20 jurisdiction, and other suit involved its original = jurisdiction--stating,=20 "There is no lack of jurisdiction involved here, because the = district=20 court acquired jurisdiction of the issues presented in the two = cases as=20 they were filed, and did not lose jurisdiction simply because he = ordered=20 them tried together.").

2.=20 Whether We May Consider the Propriety of = Consolidation

On=20 rehearing, Nguyen argues that we lack jurisdiction to consider = whether the=20 consolidation was erroneous. Nguyen reasons as follows. This = appeal is=20 from a judgment rendered in a suit seeking, in part, = forcible-detainer=20 relief. In such an appeal, we may not consider matters not = essential to,=20 dependent on, or primarily concerned with the issue of possession. = See=20 Tex. Prop. Code Ann. =A7 24.007. Consolidation is = essential to,=20 dependent on, or primarily concerned with the issue of possession. = Additionally, consolidation was not a jurisdictional matter. = Accordingly,=20 we lack jurisdiction to consider the propriety of consolidating = the=20 suits.

We assume=20 without deciding that consolidation is a matter essential to, = dependent=20 on, or primarily concerned with the issue of possession,^{=20
(19)} so that, if this were an appeal from a judgment = rendered in=20 just a forcible-detainer suit, we would lack jurisdiction = to=20 consider it. This is not such an appeal, however. Rather, it is an = appeal=20 from a judgment rendered after the consolidation of a = forcible-detainer=20 suit, in which the county civil court at law exercised only = appellate=20 jurisdiction, and a suit for declarations and damages, in which = that same=20 court exercised original jurisdiction. We have plenary appellate=20 jurisdiction to consider challenges to matters raised by pleadings = invoking the county civil court at law's original jurisdiction, = regardless=20 of whether those matters were also raised in the forcible-detainer = pleadings.

In her=20 tort-suit pleadings before consolidation, Nguyen sought a = declaration that=20 the lease assignment from Tu to her was not a breach of the lease=20 agreement; after consolidation, Nguyen sought an alternative = declaration=20 that the lease assignment was void for having been executed under = "extreme=20 duress" and asserted waiver and estoppel as defenses to any breach = that=20 the lease assignment caused. These allegations, which were = asserted under=20 and invoked the county civil court at law's original jurisdiction, = supported the portions of the judgment declaring that the lease = assignment=20 between Tu and Nguyen did not constitute a breach and awarding = Nguyen=20 possession of the leased premises. Because the pleadings invoking = each=20 type of jurisdiction sought possession, the trial court's = declarations=20 concerning breach and its award of possession were supported by = the=20 exercise of both its original and appellate jurisdiction. That is, = the=20 judgment of possession was not unique to the forcible-detainer = pleadings.=20 As we have said above, a forcible-detainer suit may run = concurrently with=20 another action--even if the other action adjudicates matters that = could=20 result in a different determination of possession--because a=20 forcible-detainer action determines only the right to immediate=20 possession, rather than the parties' ultimate rights to = any=20 other issue. See Lopez, 76 S.W.3d at 605; see = also=20 Meridien Hotels, Inc., 97 S.W.3d at 738 (indicating that = district=20 court's interlocutory order declaring that tenants had defaulted = under=20 lease, that landlord had right to terminate lease, and that = tenants no=20 longer had right to possession did not excuse justice court from=20 proceeding with forcible-detainer action); cf. Neller v.=20 Kirschke, 922 S.W.2d 182, 187 (Tex. App.--Houston [1st Dist.] = 1995,=20 writ denied) (indicating that forcible-detainer court did not = determine=20 matter of breach of lease, except in order to decide that landlord = was=20 entitled to immediate possession, so that plaintiff-landlord in = separate=20 suit for breach of lease was not entitled to judgment as matter of = law on=20 issue of breach); Valencia v. Garza, 765 S.W.2d 893, 899 = (Tex.=20 App.--San Antonio 1989, no writ) (holding that forcible-entry = judgment was=20 not res judicata as to possession in separate suit alleging claims = on=20 contract for sale); Buttery v. Bush, 575 S.W.2d 144, 146 = (Tex.=20 Civ. App.--Tyler 1978, writ ref'd n.r.e.) (holding that = forcible-entry=20 judgment was not res judicata as in separate suit seeking = declaration of=20 parties rights under lease agreement and that lease agreement was=20 void).

Accordingly, we hold=20 that, under the pleadings in this case, we have jurisdiction to = review the=20 propriety of the consolidation order.

3.=20 Whether Consolidation Was Error

Although=20 HKDI and Duong challenge the consolidation as being only = fundamental=20 error, we liberally construe their brief as alternatively arguing = that the=20 consolidation was simple error. See Tex. R. App. P. = 38.1(e),=20 38.9; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 = (Tex.=20 1989) ("[I]t is our practice to construe liberally points of error = in=20 order to obtain a just, fair and equitable adjudication of the = rights of=20 the litigants.").

We conclude=20 that consolidation in these circumstances constitutes error.=20 Forcible-detainer suits are intended to provide a speedy, summary, = and=20 inexpensive determination of the right to immediate possession, = and the=20 rules accomplish this goal by allowing the parties to litigate = only=20 limited matters. See, e.g., Meridien Hotels, = Inc., 97=20 S.W.3d at 737; see also Tex. R. Civ. P. 739, 740, 745, = 746, 748,=20 749. This object is thwarted by allowing through consolidation = what is not=20 allowed through assertion of claims in the forcible-detainer suit=20 itself.

There is=20 authority to support our conclusion. In Texas-Mexican Railway = Co. v.=20 Cahill, a forcible-detainer suit was initiated in justice = court, and=20 appeal was taken to the county's district court.^{=20
(20)} See id., 23 S.W. 232, 232 (Tex. Civ.=20 App.--Galveston 1893, writ ref'd). In overruling the appellant's = challenge=20 to the denial of its motion to consolidate the forcible-detainer = suit with=20 another suit involving the same appellee pending in the same = court, this=20 Court explained, in pertinent part:

[T]he=20 motion to consolidate was properly refused. The appellee's suit, = as we=20 have seen, was brought under the statute which provides a remedy = for the=20 recovery of the possession of real estate when the premises are in = the=20 quiet occupancy of one, and they are forcibly entered by another, = or where=20 a lessee, after the expiration of his lease, refuses to restore = possession=20 to his lessor. The statute provides a speedy and efficient remedy = for=20 restoring possession to him who is wrongfully deprived of the = same, and no=20 inquiry as to the title to, or the superior right of either party = to the=20 suit or that of any third person in, the property, is = permitted. The=20 [other suit] was a suit of trespass to try title to the lot in = question.=20 To permit the consolidation of such suits would be contrary to the = obvious=20 policy of the law, and in most cases defeat the object of the=20 statute,--the prompt adjudication of the right of possession to = the=20 premises, without reference to the right of title to the=20 property.

Id. at 232=20 (emphasis added). We follow the reasoning and conclusion of our = Court in=20 Cahill to hold in this case that the trial court erred in = consolidating the tort suit and the forcible-detainer suit.^{=20
(21)} See id.

HKDI and=20 Duong opposed the consolidation. Although the standard of review = for=20 consolidation orders is abuse of discretion,^{=20
(22)} the trial court necessarily abused its discretion = here by=20 acting contrary to the law. See Walker, 827 S.W.2d at = 840.=20

4.=20 Whether the Error Was Harmful or Rendered = Moot

Texas Rule=20 of Appellate Procedure 44.1 provides:

(a)=20 Standard for Reversible Error. No judgment may be = reversed on=20 appeal on the ground that the trial court made an error of law = unless the=20 court of appeals concludes that the error complained = of:

(1)=20 probably caused the rendition of an improper judgment; = or

(2)=20 probably prevented the appellant from properly presenting the case = to the=20 court of appeals.

Tex. R.=20 App. P. 44.1.

From the=20 perspective of the forcible-detainer plaintiff, the harm arising = from=20 having to participate in a jury trial before one can obtain what = is=20 supposed to be an inexpensive, speedy, and summary ruling on the = right to=20 immediate possession is evident. HKDI filed the forcible-detainer = suit in=20 July 2003, immediately confessed judgment, and appealed to the = county=20 court. Nguyen asserted her tort counter-claims, cross-claims, and=20 third-party claims and request for declaratory relief on October = 3, 2003.=20 The trial court consolidated the two suits that same month, = implicitly=20 overruling HKDI's motion to strike or to sever Nguyen's tort = claims=20 against HKDI and Duong in the forcible-detainer suit. Trial did = not begin=20 until December 2, and it ended on December 11; there were seven = days of=20 trial proceedings. The trial court did not render judgment = adjudicating=20 the right to possession until April 30, 2004. This significant = delay in=20 determining the mere right to immediate possession was caused by = the=20 consideration of tort claims over which the trial court, to the = extent=20 that it exercised its appellate jurisdiction in the = forcible-detainer=20 suit, lacked subject-matter jurisdiction, when the issue should = have been=20 decided inexpensively, speedily, and summarily. See, = e.g.,=20 Meridien Hotels, Inc., 97 S.W.3d at 737; see also = Tex. R.=20 Civ. P. 739, 740, 745, 746, 748, 749. Therefore, the error in=20 consolidating the two causes was harmful at the time that the = order was=20 rendered. See Tex. R. App. P. 44.1.

But the = consolidated=20 case then proceeded to trial and to final judgment, in part upon = pleadings=20 invoking the court's original jurisdiction. The pleadings invoking = the=20 trial court's original jurisdiction sought a declaration that the = lease=20 assignment between Nguyen and Tu did not breach the lease = agreement with=20 HKDI; the same pleadings alternatively sought a declaration that = the lease=20 assignment was void for having been executed under "extreme = duress" and=20 asserted waiver and estoppel as defenses to any breach that the = lease=20 assignment had caused. These allegations, which were asserted = under and=20 invoked the trial court's original jurisdiction, supported the = portion of=20 the judgment declaring that the lease assignment was not a breach = and=20 awarding Nguyen possession of the leased premises. That is, = the trial=20 court's final judgment was an adjudication not of the right to=20 immediate possession, but of the ultimate right = to=20 possession based on the declaratory requests and affirmative = defenses=20 asserted under its original jurisdiction. Put another way, the = trial=20 court, in effect, completely denied HKDI's request for a = determination of=20 the right to immediate possession and instead determined the = ultimate=20 question of who was entitled to possession.

Even though=20 a forcible-detainer judgment adjudicates the right to immediate=20 possession, that determination can later be altered if a judgment, = in a=20 separate suit adjudicating the parties' rights to other issues = involving=20 the real property, results in a different determination of = possession.=20 See Lopez, 76 S.W.3d at 605; see also Meridien = Hotels,=20 Inc., 97 S.W.3d at 738 (indicating that district court's=20 interlocutory order declaring that tenants had defaulted under = lease, that=20 landlord had right to terminate lease, and that tenants no longer = had=20 right to possession did not excuse justice court from proceeding = with=20 forcible-detainer action). Accordingly, under the pleadings in = this case,=20 the harm that HKDI suffered by the delay of what should have been = a speedy=20 determination of the right to immediate possession was mooted when = a final=20 judgment, under the trial court's exercise of original = jurisdiction and on=20 matters determining the ultimate issue of possession, was = rendered. Put=20 another way, even if HKDI could somehow obtain an adjudication of = the=20 right to immediate possession at this time, that determination = would be=20 moot because the parties' ultimate rights have already been = adjudicated=20 and possession has already been awarded based on those rights.^{=20
(23)}

That is not=20 to say that parties in HKDI's position have no remedy. A party = harmed by=20 the trial court's total denial of a speedy determination of the = right to=20 immediate possession may seek, by mandamus when the complained-of = ruling=20 occurs or before it becomes moot, that the court be ordered to = adjudicate=20 that right despite the pendency of another suit that could = ultimately lead=20 to a different determination of possession for the same property. = Here,=20 HKDI could have sought mandamus relief from the consolidation = order before=20 final judgment in the consolidated suit was rendered: HKDI would = have had=20 no adequate remedy by appeal after final judgment because (1) the=20 rendition of that judgment, under these pleadings, would have = mooted a=20 determination of the right to immediate possession and (2) under=20 Cahill, the consolidation of the forcible-detainer and = tort suits=20 was a clear abuse of discretion. See In re Prudential Ins. Co. = of=20 Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (holding that = mandamus relief=20 is proper only to correct clear abuse of discretion when there is = no=20 adequate remedy by appeal); In = re Van=20 Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) = (noting=20 that, although mandamus will ordinarily not issue to correct = erroneous=20 consolidation, writ will issue if "'extraordinary circumstances' = are=20 present that make an ordinary appeal inadequate," such as when = "the=20 appellate court would not be able to cure the error, [or] when the = party's=20 ability to present a viable claim . . . is vitiated=20 . . . .") (quoting Canadian Helicopters Ltd. v. = Wittig, 876 S.W.2d 304, 309 (Tex. 1994)); cf. Meridien = Hotels,=20 Inc., 97 S.W.3d at 738-39 (holding that county court did not = abuse=20 discretion in issuing mandamus writ ordering justice court to = vacate its=20 order abating forcible-detainer proceedings when justice court = abated its=20 suit solely to allow district court--which had declared that = tenants had=20 defaulted under lease, that landlord had right to terminate lease, = and=20 that tenants no longer had right to possession--to finalize = judgment=20 there; also holding that no adequate remedy at law existed for = justice=20 court's interlocutory abatement order). But at this point--upon = these=20 pleadings, this judgment, and these facts--the harm that HKDI = suffered=20 from the deprivation of its right to a speedy determination of = immediate=20 possession is moot.

We overrule=20 this portion of issue one.

D.=20 Personal Jurisdiction Over Duong

In the=20 remainder of issue one, HKDI and Duong also argue that, because = Nguyen=20 never served Duong in the forcible-detainer suit before=20 consolidation, and because she excluded him from the last amended = petition=20 in that suit, the trial court lacked personal jurisdiction over = Duong to=20 render judgment against him for tortious interference in the=20 consolidated suit. Accordingly, HKDI and Duong argue that = the=20 final judgment rendered in the consolidated suit was void with = respect to=20 Duong. We may consider this challenge, even though it relates to = the=20 pre-consolidation forcible-detainer suit's pleadings, because it = concerns=20 personal jurisdiction over Duong, rather than the issue of = possession.=20 Cf. Rice, 51 S.W.3d at 708.

HKDI and=20 Duong do not contest that Duong was served and answered in the = tort suit,=20 which alleged a conspiracy claim against him, before = consolidation.=20 Accordingly, Duong became a party defendant in the consolidated = suit even=20 though the specific cause of action (tortious interference) was = not=20 alleged against him until after trial. As long as some cause of = action was=20 alleged against Duong in one of the pre-consolidation suits and he = was=20 served or appeared in that suit, the trial court had personal = jurisdiction=20 over him post-consolidation.

We overrule=20 the remainder of issue one.

E.=20 Legal-Sufficiency Challenges

Under issue=20 three, HKDI and Duong assert various legal-sufficiency challenges = to the=20 jury's findings on Nguyen's tort claims and on her defenses. We = have=20 jurisdiction to consider these challenges because they do not = relate=20 either solely or at all to the forcible-detainer = pleadings.

1.=20 Standard of Review

When, as=20 here, an appellant attacks the legal sufficiency of an adverse = finding on=20 an issue for which it did not have the burden of proof, the = appellant must=20 demonstrate that there is no evidence to support the adverse = finding.=20 Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Such = a=20 no-evidence challenge will be sustained when "'(a) there is a = complete=20 absence of evidence of a vital fact, (b) the court is barred by = rules of=20 law or of evidence from giving weight to the only evidence offered = to=20 prove a vital fact, (c) the evidence offered to prove a vital fact = is no=20 more than a mere scintilla, or (d) the evidence conclusively = establishes=20 the opposite of the vital fact.'" King Ranch, Inc. v. = Chapman,=20 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharm., = Inc. v.=20 Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

To the=20 extent that HKDI and Duong challenge the legal sufficiency of the = evidence=20 that Nguyen offered to prove a vital fact, "we must view the = evidence in a=20 light that tends to support the finding of disputed fact and = disregard all=20 evidence and inferences to the contrary." Wal-Mart Stores, = Inc. v.=20 Miller, 102 S.W.3d 706, 709 (Tex. 2003). However, "[t]he = final test=20 for legal sufficiency must always be whether the evidence at trial = would=20 enable reasonable and fair-minded people to reach the verdict = under review=20 . . . . [L]egal-sufficiency review in the proper = light must=20 credit favorable evidence if reasonable jurors could, and = disregard=20 contrary evidence unless reasonable jurors could not." City of = Keller=20 v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The jury is the = sole=20 judge of witnesses' credibility, and it may choose to believe one = witness=20 over another; a reviewing court may not impose its own opinion to = the=20 contrary. Id. at 819. Because it is the jury's province = to=20 resolve conflicting evidence, we must assume that jurors resolved = all=20 conflicts in accordance with their verdict if reasonable human = beings=20 could do so. Id.

2.=20 Specific Legal-Sufficiency Challenges^{=20
(24)}

a.=20 Duong's Tortious Interference

Nguyen's=20 theory of tortious interference, as pleaded, appeared to be that = the=20 individual appellants (Tu and Duong) had tortiously interfered = with her=20 lease agreement with HKDI. Jury question number 6 reflected this = theory by=20 instructing the jury that "[Duong] cannot be held liable for = inducing=20 [HKDI] to violate a contractual obligation if he acted in = good faith=20 and believed what he did was for the best interest of [HKDI]." = (Emphasis=20 added.) The jury was never asked whether Tu had tortiously = interfered with=20 any of Nguyen's contracts. The jury also expressly found that HKDI = had=20 conspired with Duong and that Tu had not, and it implicitly found = that the=20 focus of Duong and HKDI's conspiracy was Duong's tortious = interference=20 with Nguyen's lease agreement with HKDI.

Under part=20 of issue three, HKDI and Duong argue, among other things, that the = trial=20 court erred in rendering judgment on Nguyen's claim for tortious=20 interference with contractual relations against Duong because = Duong was=20 HKDI's corporate officer and agent and thus, as a matter of law, = could not=20 have tortiously interfered with the lease agreement between Nguyen = and=20 HKDI.^{=20
(25)}

"The=20 elements of tortious interference with a contract are: (1) the = existence=20 of a contract subject to interference; (2) willful and intentional = interference; (3) interference that proximately caused damage; and = (4)=20 actual damage or loss." Powell Indus., Inc. v. Allen, 985 = S.W.2d=20 455, 456 (Tex. 1998). "When the defendant is both a corporate = agent and=20 the third party who allegedly induces the corporation's breach, = the second=20 element is particularly important." Id. at 456-57. = "Because a=20 corporate officer's acts on the corporation's behalf usually are = deemed=20 corporate acts, a plaintiff must show that the agent acted = solely=20 in his own interests." Id. (Emphasis added.) "The = plaintiff must=20 prove that the agent acted willfully and intentionally to serve = the=20 agent's personal interests at the corporation's expense." = Id. (Emphasis added.) "A corporate officer's mixed = motives--to=20 benefit both himself and the corporation--are insufficient to = establish=20 liability." Id.

"[W]hen=20 determining whether an agent acted against the corporation's = interests, we=20 consider the corporation's evaluation of the agent's actions." = Id.=20 We do so because "[a] corporation is a better judge of its = own best=20 interests than a jury or court." Id. Although a complaint = by the=20 principal about its agent's actions does not conclusively show = that the=20 agent acted against its principal's interest, "if a corporation = does not=20 complain about its agent's actions, then the agent cannot be held = to have=20 acted contrary to the corporation's interests." = Id.

Duong was=20 the president, shareholder, and owner of HKDI. He signed the lease = agreement with Nguyen and Tu on behalf of HKDI. Nguyen's counsel's = questions at trial repeatedly equated Duong with HKDI. Duong = testified=20 that he believed that it was in the best interest of HKDI to = terminate the=20 lease agreement. Nguyen testified that Duong had threatened to = evict=20 Nguyen if she testified adversely to Tu's brother, who was a = friend of=20 Duong's, in her divorce case. Nguyen's attorney argued in closing = that=20 Duong's threat showed a "purely personal" vendetta that "ha[d] = nothing to=20 do with [HKDI] or the business or the corporation," but he also = argued=20 that HKDI "c[a]me back and ratified [Duong's] acts, so they're = going to be=20 responsible for what he did." He further argued in closing that = Duong's=20 tortious interference with the lease agreement was "for personal = reasons."=20

The above=20 is no evidence that Duong acted solely in his own interest and = against=20 HKDI's interests. Importantly, we have found no evidence--and = Nguyen has=20 directed us to none--that HKDI objected to Duong's instigating the = eviction or that HKDI's interests lay elsewhere than in evicting = Nguyen=20 and Tu. Indeed, Nguyen's attorney argued to the jury that HKDI = ratified=20 Duong's acts and that that ratification made HKDI liable for = Duong's acts;=20 moreover, HKDI has consistently remained the plaintiff in the=20 forcible-detainer suit to evict Nguyen and Tu. Accordingly, we = hold that=20 legally insufficient evidence supports the jury's finding that = Duong was=20 liable for tortious interference. We thus hold that the trial = court erred=20 by denying HKDI and Duong's motion for directed verdict and by = overruling=20 their objection to the submission of the jury question on = liability for=20 this cause of action.

We sustain=20 this portion of issue three.

b.=20 Civil Conspiracy

Nguyen=20 pleaded that all three appellants conspired to evict her. The = conspiracy=20 charge was not expressly predicated on a liability question for an = underlying wrong; nonetheless, the only underlying wrong for which = damages=20 were assessed was Duong's tortious interference, so that Duong's = tortious=20 interference could have been the only basis for conspiracy and = thus for=20 HKDI's liability. Because the claim against Duong for tortious=20 interference was the only underlying cause of action for which = actual=20 damages were awarded and that could have supported a claim for = civil=20 conspiracy against HKDI or Duong, and because the = tortious-interference=20 claim against Duong failed as a matter of law for the reasons = stated=20 above, HKDI and Duong argue, under part of issue three, that the = trial=20 court erred in rendering judgment against them on Nguyen's=20 civil-conspiracy claim.^{=20
(26)}

"Civil conspiracy, generally defined as = a=20 combination of two or more persons to accomplish an unlawful = purpose, or=20 to accomplish a lawful purpose by unlawful means, might be called = a=20 derivative tort" because the "defendant's liability for conspiracy = depends on participation in some underlying tort for = which the=20 plaintiff seeks to hold at least one of the named defendants = liable."=20 Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) = (emphasis=20 added). The claim's elements are "(1) two or more persons; (2) an = object=20 to be accomplished; (3) a meeting of the minds on the object or = course of=20 action; (4) one or more unlawful, overt acts; and (5) damages as a = proximate result." Tri v. J.T.T., 162 S.W.3d 552, 556 = (Tex.=20 2005). "[C]ivil conspiracy 'came to be used to extend liability in = tort .=20 . . beyond the active wrongdoer to those who have merely planned,=20 assisted, or encouraged his acts.'" Carroll v. Timmers = Chevrolet,=20 Inc., 592 S.W.2d 922, 925-26 (Tex. 1979) (quoting W. Prosser, = Handbook Of The Law Of Torts, =A7 46, at 293 (1971)). =

Jury=20 questions 8 and 9 asked whether HKDI or Duong were "part of a = conspiracy=20 that damaged [Nguyen]" and instructed that, for the party to be = part of a=20 conspiracy, he or it "and another person or persons must have had=20 knowledge of, agreed to, and intended a common objective or course = of=20 action that resulted in damages to [Nguyen]." The instruction = continued:=20 "One or more persons involved in the conspiracy must have = performed some=20 act or acts to further the conspiracy." As stated above, jury = questions 8=20 and 9 were not predicated on a jury tort finding, but given that = the only=20 tort that was submitted to the jury was Duong's tortious = interference,=20 that tort could have been the only "course of action" or "common=20 objective" of the conspiracy. We have already sustained HKDI and = Duong's=20 legal-sufficiency challenge to the jury's finding that Duong was = liable=20 for tortious interference. If there is no underlying wrong or = object=20 (here, tortious interference), then there can be no conspiracy. = See=20 Tri, 162 = S.W.3d at 556;=20 Tilton, 925 S.W.2d at 681. Accordingly, we hold=20 that legally insufficient evidence supports the jury's findings = that HKDI=20 and Duong were part of a conspiracy that damaged Nguyen.^{=20
(27)} We thus hold that the trial court erred by = implicitly=20 denying what we have construed as HKDI and Duong's pre-judgment = motion for=20 JNOV or to disregard jury findings, by overruling their directed = verdict=20 on this ground, and by rendering judgment for Nguyen on this=20 claim.

We sustain=20 this portion of issue three.

c.=20 Actual Damages

Under part=20 of issue three, HKDI and Duong first argue that the trial court = erred as a=20 matter of law in rendering judgment for $15,312.58 in actual=20 damages--which represented the mental-anguish damages that Nguyen = elected=20 to recover, plus interest--because those damages were predicated = on an=20 affirmative finding that Duong was liable for tortious = interference, which=20 predicate failed as a matter of law for the reasons stated = above.^{=20
(28)} Alternatively, HKDI and Duong argue that no = evidence=20 supports the jury's assessment of mental-anguish damages because = the=20 relevant evidence does not demonstrate the type of high degree of = mental=20 suffering required to obtain this type of damages.^{=20
(29)} Finally, HKDI and Duong argue that the jury's award = of=20 $49,266.66 in costs of defending her right to possession cannot = support=20 the actual damages awarded because Nguyen elected to receive and = was=20 awarded attorney's fees, which, if she were also awarded the costs = of=20 defending possession, would constitute a double recovery.^{=20
(30)}

Jury=20 question 7, the sole question concerning actual damages, was = predicated on=20 an affirmative answer to jury question 6, concerning Duong's = tortious=20 interference with contract. It was not predicated on jury = questions 8 or=20 9, concerning civil conspiracy.^{=20
(31)} We have already held that legally insufficient = evidence=20 supports the jury's determination that Duong tortiously interfered = with=20 the lease assignment--the sole predicate to the jury's actual = damages=20 determination. Accordingly, we hold that legally insufficient = evidence=20 supports the jury's actual-damages findings (both mental-anguish = damages=20 and those for right to defend possession). We thus hold that the = trial=20 court erred by implicitly denying what we have construed as HKDI = and=20 Duong's pre-judgment motion for JNOV or to disregard jury findings = and by=20 rendering judgment for Nguyen for any amount of actual damages. We = thus=20 need not reach HKDI and Duong's remaining legal-sufficiency = challenges to=20 the award of actual damages.

We sustain=20 this portion of issue three.

d.=20 Malice and Punitive Damages

Under part=20 of issue three, HKDI and Duong also argue that, because legally=20 insufficient evidence exists of the only actual damages that = Nguyen=20 elected to recover--mental-anguish damages--and because punitive = damages=20 cannot be awarded absent the award of actual damages, the trial = court=20 erred in assessing punitive damages against HKDI and Duong.^{=20
(32)} HKDI and Duong further argue that the trial court = erred in=20 assessing punitive damages against HKDI because the jury was not = asked to=20 find that HKDI had acted with malice, so that there was no = predicate=20 finding against HKDI that would have allowed punitive damages.^{=20
(33)}

Jury=20 question 15, concerning punitive damages against Duong, was = predicated on=20 an affirmative finding on jury question 11, which asked if Duong's = malice=20 had caused Nguyen damages. Jury question 16, concerning punitive = damages=20 against HKDI, was likewise predicated on an affirmative finding on = jury=20 question 11, which asked if Duong's malice had caused Nguyen = damages. The=20 jury charge contained no question concerning whether HKDI had = acted with=20 malice or whether that malice had harmed Nguyen. Jury question 11, = concerning Duong's malice, was predicated on an affirmative = finding to=20 jury question 8, which asked the jury whether Duong had been part = of a=20 conspiracy that damaged Nguyen. The only actual-damages question = was jury=20 question number 7, which was predicated on an affirmative answer = to jury=20 question number 6, concerning Duong's tortious interference; the=20 actual-damages question was not predicated on jury questions 8 or = 9,=20 concerning civil conspiracy.

We first=20 sustain HKDI and Duong's challenge to the assessment of punitive = damages=20 against HKDI. Under the = statute=20 applicable to this case, exemplary damages could be awarded only = if Nguyen=20 proved by clear and convincing evidence that the harm with respect = to=20 which she sought recovery of exemplary damages resulted = from (in=20 addition to situations irrelevant here) malice. See Act = of Apr.=20 11, 1995, 74th Leg., R.S., ch. 19, =A7 1, 1995 Tex. Gen. Laws = 108, 110=20 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code = Ann.=20 =A7 41.003(a) (Vernon Supp. 2006)). The jury was asked to = find malice=20 for Duong and Tu, but not for HKDI. In the charge, the court = submitted=20 separate liability and punitive-damages questions for Duong and = HKDI,=20 indicating that when it submitted questions concerning Duong, the = court=20 meant Duong in his individual capacity, rather than in his = representative=20 capacity. Accordingly, the jury was never asked to find that HKDI=20 (i.e., Duong acting in his representative capacity) acted = with=20 malice, a necessary predicate to obtaining punitive damages = against HKDI.=20 See Act of Apr. 11, 1995, 74th Leg., R.S., ch. 19, 1995 = Tex. Gen.=20 Laws 108, 110 (amended 2003). The trial court thus erred in = awarding=20 punitive damages against HKDI. See id.; Akin v. = Dahl,=20 661 S.W.2d 917, 921-22 (Tex. 1983) (holding that finding of civil=20 conspiracy, when object of that conspiracy is tort of which malice = is=20 element, suffices to make co-conspirators subject to punitive = damages even=20 without separate malice finding; further indicating, however, that = when=20 "object of the conspiracy is an unlawful tort, such as negligence, = which=20 did not contain wanton behavior, malice, or their progeny as an = element of=20 the cause of action, then that additional finding [of malice] = would be=20 necessary as to each co-conspirator against whom exemplary damages = were=20 sought.").

We also sustain HKDI and = Duong's=20 challenge to the assessment of punitive damages against = Duong. For the reasons stated earlier, = we have=20 already held that the trial court erred in rendering judgment for = actual=20 damages for Duong's tortious interference.^{=20
(34)} The trial court thus erred in awarding punitive = damages=20 against Duong. See Juliette Fowler Homes, Inc. v. Welch = Assocs.,=20 Inc., 793 S.W.2d 660, 667 (Tex. 1990) ("Since we have = determined that=20 there is no evidence that John Butler or Butler Companies = tortiously=20 interfered with the Fowler-Welch contract, Welch is not entitled = to an=20 award of actual damages. Recovery of actual damages is a = prerequisite to=20 the receipt of exemplary damages. Consequently, Welch is not = entitled to=20 recover exemplary damages.") (citation omitted).

For these reasons, we hold that = the trial=20 court erred by = implicitly=20 denying what we have construed as HKDI and Duong's pre-judgment = motion for=20 JNOV or to disregard jury findings, by overruling their objection = to the=20 submission of the charge issue on punitive damages against HKDI, = and by=20 rendering judgment for punitive damages against HKDI and = Duong.

We sustain=20 this portion of issue three.

e. Attorney's=20 Fees

The jury awarded Nguyen $73,900 = in=20 attorney's fees for trial preparation and $6,000 in attorney's = fees for=20 preparation of post-trial motions. The trial court, in rendering = judgment=20 awarding Nguyen the fees that the jury found, recited, "[Nguyen], = as the=20 prevailing party, is entitled to recover attorney's fees under the = Declaratory Judgment Act and section 24.006 of the Texas Property = Code."=20 Under issue three, HKDI and Duong argue that the trial court erred = as a=20 matter of law in rendering judgment for the attorney's fees that = the jury=20 found because (1) recovery of actual damages is a prerequisite to=20 recovering attorney's fees; (2) the Declaratory Judgment Act = ("DJA") did=20 not support the award of attorney's fees because the declaratory = judgment=20 that Nguyen sought in her pre-consolidation tort suit duplicated = the=20 relief sought by HKDI and Duong in the pre-consolidation = forcible-detainer=20 suit; and (3) Nguyen did not segregate her attorney's fees.^{=20
(35)} HKDI and Duong preserved these arguments in their = motion=20 for directed verdict, their objections to the charge, and their = objections=20 to Nguyen's motion for entry of judgment and their own motion for = entry of=20 judgment, which we have construed as motions for JNOV or to = disregard the=20 verdict.^{=20
(37)} See = Cecil v.=20 Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).

i. Actual Damages as=20 Prerequisite

Under part of issue three, HKDI = and Duong=20 argue that Nguyen cannot recover attorney's fees because she is = not=20 entitled, for the reasons discussed above, to recover actual = damages,=20 which recovery they assert is a prerequisite to recovery of = attorney's=20 fees.

The trial court cited the DJA = as a basis=20 for awarding Nguyen her attorney's fees. The DJA empowers courts = "to=20 declare rights, status, and other legal relations whether or = not=20 further relief is or could be claimed." Tex. Civ. Prac. & = Rem.=20 Code Ann. =A7 37.003(a) (Vernon 1997) (emphasis added). The = DJA also=20 provides that "the court may award costs and reasonable and = necessary=20 attorney's fees as are equitable and just." Id. = =A7 37.009=20 (Vernon 1997). The only requirements that the statute provides are = that=20 the fees be reasonable and necessary and that their award be = equitable and=20 just. See id. One need not even be the prevailing party = or seek=20 affirmative relief to be awarded attorney's fees under the DJA, as = long as=20 the award of fees is equitable and just. See Save Our Springs=20 Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Bd. of = Dirs.,=20 198 S.W.3d 300, 318 (Tex. App.--Texarkana 2006, pet. denied) = ("Either=20 party may obtain attorney's fees [under DJA] regardless of which = party is=20 affirmatively seeking relief."); Del Valle Indep. Sch. Dist. = v.=20 Lopez, 863 S.W.2d 507, 512-13 (Tex. App.--Austin 1993, writ = denied)=20 ("[A]n award [of attorney's fees] under the [DJA] is not limited = to the=20 prevailing party."); see also Barshop v. Medina County = Underground=20 Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996) = (rejecting=20 argument that party had to "substantially prevail" in order to = recover=20 attorney's fees under DJA). For this reason, and because the DJA=20 authorizes relief in the form of a declaration (rather than = damages), the=20 DJA claimant obviously need not recover damages to be entitled to = recover=20 attorney's fees under that statute.

We overrule this challenge = under issue=20 three.

ii. Recovery under the=20 DJA

Under part of issue three, HKDI = and Duong=20 also argue that the trial court could not award attorney's fees = under the=20 DJA because the declaratory judgment that Nguyen sought in her=20 pre-consolidation tort suit duplicated the relief sought by HKDI = in the=20 pre-consolidation forcible-detainer suit. Specifically, HKDI and = Duong=20 argue that the forcible-detainer allegations "resolved the issues = of=20 duress and the applicability of the Lease's anti-assignment = clause," so=20 that Nguyen's DJA request was merely redundant of what would have = been=20 determined in the forcible-detainer suit.

In the pre-consolidation tort = suit,=20 Nguyen pleaded for alternative declarations that (1) the lease = assignment=20 did not breach the lease agreement and (2) the lease assignment = was void=20 for having been executed under duress. In the pre-consolidation=20 forcible-detainer suit, HKDI alleged that the lease assignment was = a=20 default under the lease agreement. These allegations were joined = upon=20 consolidation.

The DJA allows the trial court = to award=20 reasonable and necessary attorney's fees as are equitable and = just. Tex.=20 Civ. Prac. & Rem. Code Ann. =A7 37.009 (Vernon 1997). = However, "[a]=20 declaratory judgment action may not be used solely to = obtain=20 attorney's fees that are not otherwise authorized by = statute or=20 to settle disputes already pending before a court." = Southwest=20 Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d = 951, 956=20 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (emphasis=20 added).

We hold that Nguyen's DJA = request was not=20 merely redundant of the issues litigated in the forcible-detainer = suit, so=20 that fees would be unavailable to Nguyen. First, Nguyen filed the = tort=20 suit before HKDI filed the forcible-detainer suit, and she sought=20 declaratory relief in her original petition in the tort suit. Only = afterwards did HKDI, not Nguyen, initiate forcible-detainer = proceedings.=20 And later still, the trial court consolidated the proceedings. = This=20 sequence of events demonstrates that Nguyen did not allege = declaratory=20 relief solely to obtain fees that were not otherwise authorized = (indeed,=20 at the time that she filed the tort suit, the DJA clearly = authorized those=20 fees) or to settle disputes that were already pending before the = court.=20 HKDI and Duong do not explain how consolidation would = retroactively render=20 Nguyen's prior request for declaratory relief a mere subterfuge = for=20 obtaining fees.

Second, and in any event, the = court in a=20 forcible-detainer suit often (as here) construes a lease and = considers=20 breaches of or defenses to lease provisions, but it does so only = as part=20 of determining which party has the superior right to immediate = possession. See = Ward,=20 115 S.W.3d at 270. It does not determine the parties' ultimate = rights to=20 any other issue in controversy relating to the particular = realty.=20 Lopez, 76 S.W.3d at 605. For these reasons, a = forcible-detainer=20 suit may run concurrently with another action in another = court--even if=20 the other action adjudicates matters that could result in a = different=20 determination of possession from that rendered in the = forcible-detainer=20 suit. See Villalon, 176 S.W.3d at 70-71. This last = concept has=20 been extended to other suits in which declaratory relief is = sought.=20 Cf. Meridien Hotels, Inc., 97 S.W.3d at 738.

If a suit=20 to declare the parties' rights under a lease can be maintained=20 simultaneously with a forcible-detainer suit--even when the=20 forcible-detainer court may simultaneously be considering the same = rights=20 under the same lease--then it is hard to imagine that the claimant = in the=20 separate DJA suit could not obtain attorney's fees simply because = a=20 forcible-detainer suit was on-going. It is even harder to imagine = that the=20 DJA claimant could not obtain attorney's fees when her suit = preceded the=20 forcible-detainer action.

We overrule=20 this challenge under issue three.

iii. Failure to=20 Segregate

Also under part of issue three, = HKDI and=20 Duong argue that the trial court erred in rendering judgment on = the jury's=20 verdict for attorney's fees because Nguyen failed to segregate the = fees=20 attributable to those claims for which fees were recoverable from = those=20 for which they were not. HKDI and Duong preserved this challenge = through=20 an objection to the charge. See=20 Stewart Title = Guar. Co. v.=20 Sterling, 822 S.W.2d 1, 10 (Tex. 1991); Young = v.=20 Neatherlin, 102 S.W.3d 415, 420 (Tex. App.--Houston [14th = Dist.]=20 2003, no pet.) (holding that objection to charge preserved = challenge, even=20 though party had not objected to testimony on unsegregated fees).=20 We apply a hybrid standard = of review=20 because the issue of whether fees must be segregated can be a = mixed=20 question of law and fact. See Tony Gullo Motors I, L.P. v. = Chapa,=20 212 S.W.3d 299, 313 (Tex. 2006).

The trial court, in rendering = judgment=20 awarding Nguyen the fees found by the jury, recited, "[Nguyen], as = the=20 prevailing party, is entitled to recover attorney's fees under the = [DJA]=20 and section 24.006 of the Texas Property Code." We have already = explained=20 why Nguyen could recover attorney's fees under the DJA. = Additionally, she=20 prevailed in the forcible-detainer matter by having been awarded=20 possession, entitling her to attorney's fees for counsel's work = relating=20 to the forcible-detainer allegations. See W. = Anderson=20 Plaza v. Feyznia 876 S.W.2d 528, 537 (Tex. App.--Austin 1994, = no=20 writ). But Nguyen also = asserted=20 claims for conspiracy, tortious interference with contract, = wrongful=20 eviction (though that claim did not go to the jury), and unfair=20 competition (which also did not go to the jury) and sought = punitive=20 damages and indemnity.

Neither party indicates where = in the=20 record Nguyen proved her attorney's fees, but what testimony we = have found=20 proving Nguyen's attorney's fees does not segregate those incurred = for=20 work done in prosecuting Nguyen's DJA request and defending the=20 forcible-detainer allegations, for which fees were recoverable,^{=20
(38)} and for work done in prosecuting Nguyen's tort = claims, for=20 which fees were not recoverable.^{=20
(39)} Nguyen does not deny that her expert did not = segregate her=20 attorney's fees among causes of action and defenses, but instead = invokes=20 an exception to the requirement: that her claims, counter-claims, = and=20 third-party claims in both pre-consolidation suits and in the = consolidated=20 suit were inextricably intertwined, so that her expert did not = need to=20 segregate fees among claims. In support, Nguyen does not rely on = her own=20 expert's testimony that the claims were so inextricably = intertwined that=20 they cannot be segregated; rather, she relies on the following=20 questioning, by HKDI and Duong's counsel, of the expert testifying to = Tu's=20 attorney's fees:

Counsel: Is it possible for you = to=20 segregate out fees that are associated with defending the=20 [forcible-detainer] matter . . . versus the claims made = by=20 [Nguyen]?

Tu's Expert: The matters are = inextricably=20 intertwined and cannot be segregated out. To defend [Tu] in one = claim also=20 defends her in the claims that [Nguyen] has brought against=20 her.

Parties seeking to recover attorney's = fees are=20 "required to segregate fees between claims for which [fees] are=20 recoverable and claims for which they are not." Chapa, = 212 S.W.3d=20 at 311. This rule is not without an exception. But that exception = has=20 changed over time. At the time of trial in this cause, as well as = when the=20 parties briefed this appeal, the following exception to the=20 segregation-of-fees requirement existed:

A recognized exception to this = duty to=20 segregate arises when the attorney's fees rendered are in = connection with=20 claims arising out of the same transaction and are so interrelated = that=20 their "prosecution or defense entails proof or denial of = essentially the=20 same facts." Therefore, when the causes of action involved in the = suit are=20 dependent upon the same set of facts or circumstances and thus are = "intertwined to the point of being inseparable," the party suing = for=20 attorney's fees may recover the entire amount covering all claims. =

Sterling, 822 S.W.2d = at 11-12=20 (quoting Gill Sav. Ass'n v. Chair King, Inc., 783 S.W.2d = 674, 680=20 (Tex. App.--Houston [14th Dist.] 1989), modified, 797 = S.W.2d 31=20 (Tex. 1990)) and Flint & Assoc. v. Intercontinental Pipe = &=20 Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.--Dallas 1987, = writ=20 denied)), modified by Chapa, 212 S.W.3d at 314. = It is=20 this exception that Nguyen invoked here and below. However, the = exception=20 was modified during pendency of this appeal:

Intertwined facts do = not make=20 tort [attorney's] fees recoverable; it is only when discrete = legal=20 services advance both a recoverable and unrecoverable claim = that they=20 are so intertwined that they need not be segregated. We modify=20 Sterling to that extent.

Chapa, 212 S.W.3d at = 313-14=20 (emphasis added). =

Regardless=20 of which standard applies to our review of this case, we hold that = Nguyen=20 did not carry her burden of demonstrating that the exception to = the=20 segregation-of-fees duty applied. Under the former standard of=20 Sterling, Tu's expert's testimony that Tu's = attorney's=20 fees could not be segregated because her defense to the = forcible-detainer=20 suit was inextricably intertwined with her defense against = Nguyen's tort=20 claims is one thing; expert testimony concerning Nguyen's = attorney's fees is another. Moreover, Tu's expert's testimony = compared=20 the torts or claims that Nguyen asserted against her = (conspiracy,=20 unfair competition, breach of fiduciary duty, indemnity, and = tortious=20 interference with contract) with matters relevant to the = forcible-detainer=20 proceeding. That testimony did not also consider whether the tort = that=20 Nguyen had asserted only against HKDI (wrongful eviction), her = seeking=20 injunctive relief to prevent HKDI from evicting her, her seeking=20 injunctive relief against HKDI and Duong's law firm for having = contacted=20 her allegedly in violation of disciplinary rules, and the matters = related=20 to Nguyen's defense against HKDI and Duong's counter-claim for = sanctions=20 were inextricably intertwined with Nguyen's claims and defenses = for which=20 fees were recoverable. Additionally, Tu's counsel's testimony is=20 conclusory. And under the new standard of Chapa, whether = the=20 claims were inextricably intertwined is not the test: rather, the = test is=20 whether discrete legal services advance both a claim or = defense=20 for which fees are recoverable and a claim or defense for which = fees are=20 unrecoverable that fees need not be segregated. See=20 id.

We sustain=20 this portion of issue three. When an appellate court sustains a = challenge=20 that attorney's fees were not properly segregated, the remedy is = to sever=20 that portion of the judgment awarding attorney's fees and to = remand the=20 cause for the issue to be relitigated. See Sterling, 822 = S.W.2d=20 at 11-12; accord Chapa, 212 S.W.3d at 314; = see=20 also Brown v. Traylor, 210 S.W.3d 648, 659-60 (Tex.=20 App.--Houston [1st Dist.] 2006, no pet.) (holding that amount of=20 attorney's fees was issue that was separable under Tex. R. App. P. = 44.1(b)=20 and that thus could be remanded for trial on that sole issue). On = remand,=20 the standard established by the Texas Supreme Court in = Chapa for=20 segregating attorney's fees will apply.

F.=20 Trial and Post-Trial Amendment of Pleadings

In=20 pertinent part, HKDI and Duong phrase their issue two as follows: = "The=20 court will decide if the trial court properly granted Nguyen leave = to=20 amend or supplement her pleadings after trial to inject [the] new, = immaterial, and prejudicial" affirmative defenses of waiver and = estoppel.=20 We have jurisdiction to consider this challenge because it does = not relate=20 solely to the forcible-detainer pleadings.

The focus=20 of HKDI and Duong's brief is almost entirely on waiver and = estoppel.=20 However, the jury answered in the affirmative that the failure to = obtain=20 HKDI's written consent to the lease assignment was "excused" by = waiver,=20 estoppel, and duress. The trial court's judgment recited, = "The=20 Court finds that . . . the lease agreement was not = breached by=20 [Nguyen and Tu's] compliance with a Court Ordered assignment of = [Tu's]=20 lease interest in relation to the dissolution of their partnership = . . . ," which appears to have been applying a = variation of=20 Nguyen's defensive theory of duress. The final judgment also = awarded=20 Nguyen possession.

"Generally=20 speaking, an appellant must attack all independent bases or = grounds that=20 fully support a complained-of ruling or judgment." Britton v. = Tex.=20 Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. = App.--Houston=20 [1st Dist.] 2002, no pet.). This rule exists because "if an = independent=20 ground fully supports the complained-of ruling or judgment, but = the=20 appellant assigns no error to that independent ground, then (1) we = must=20 accept the validity of that unchallenged independent ground=20 . . . and thus (2) any error in the grounds challenged = on appeal=20 is harmless because the unchallenged independent ground fully = supports the=20 complained-of ruling or judgment." Id. (citation = omitted). For=20 example, "when independent jury findings fully support a judgment, = an=20 appellant must attack each independent jury finding to obtain a = reversal."=20 Id. at 682.

Given the=20 phrasing of their issue, the fact that its focus is on the = propriety of=20 granting Nguyen leave to amend her petition, and that the = affirmative=20 defense of duress had already been pleaded before trial (and so = did not=20 require a trial amendment), HKDI and Duong have not challenged the = jury's=20 finding that duress excused the lease assignment without = consent.^{=20
(40)} Under this charge, the jury's finding of duress = supports,=20 by itself, the judgment of possession rendered. Accordingly, any = error in=20 allowing Nguyen belatedly to amend her petition to assert the = other=20 affirmative defenses of waiver and estoppel is harmless as a = matter of=20 law.

We overrule=20 issue two.

Tu's Appeal

In three=20 issues, Tu contends that the trial court erred in rendering = judgment=20 declaring that the lease and partnership assignments' indemnity = provisions=20 made Tu responsible for Nguyen's attorney's fees and awarding = Nguyen=20 $79,900 in attorney's fees against Tu, jointly and severally with = HKDI and=20 Duong. Tu bases her challenge on three grounds: (1) the court = declared=20 that the lease assignment did not breach the lease agreement with = HKDI,=20 which declaration allegedly eliminated the sole basis for = contractual=20 indemnity; (2) alternatively, the claims alleged against Nguyen = did not=20 fall within the indemnity agreements' unambiguous terms; and (3) = Nguyen=20 did not segregate evidence of her attorney's fees.

A.=20 Pertinent Facts

Two sets of=20 indemnity provisions were at issue in the consolidated suit. The = first set=20 was included in the partnership assignment between Tu and Nguyen, = and the=20 second set was included in the lease assignment between them. We = need to=20 examine only the lease assignment's indemnity = provision:

Assignor=20 [Tu] hereby indemnifies Assignee [Nguyen] and agrees to hold = [Nguyen]=20 harmless from and against any and all claims, demands,=20 obligations, liabilities, costs, losses and expenses, = including=20 without limitation attorney's fees resulting from or arising = out of=20 all provisions, agreements, obligations, covenants and conditions=20 which are or were provided or required to be paid, performed, = discharged, and/or observed prior to the effective date = of this=20 Assignment by [Tu] under or in connection with the Lease [between = HKDI and=20 Tu and Nguyen].

(Emphasis=20 added.)

In her=20 pleadings filed in the consolidated suit, Nguyen asserted an = indemnity=20 claim against Tu, alleging that "[Tu's] actions would constitute a = breach=20 of contract and would bound [sic] her to an indemnification = agreement to=20 [Nguyen] and the partnership" and that "[Nguyen] is entitled to=20 indemnification from [Tu] for damages for attorney fee [sic]." =

The jury=20 question relevant to our discussion asked if "the 'assignment' = from Tu to=20 [Nguyen] was 'excused'" by waiver, estoppel, or duress. Because = this jury=20 question concerned affirmative defenses,^{=20
(41)} the question, its instructions, and its definitions = impliedly assumed that the execution of the lease assignment = without=20 HKDI's prior written consent violated the terms of the lease = agreement=20 with HKDI.^{=20
(42)} The final judgment then recited as = follows:

The Court=20 finds that, in interpreting the lease agreement as a whole, the = lease=20 agreement was not breached by [[Nguyen's] and [Tu's] compliance = with a=20 Court Ordered assignment of [Tu's] lease interest in relation to = the=20 dissolution of the partnership which was done without the prior = written=20 consent of [HKDI].

. . . .

The jury=20 returned a verdict as to [Nguyen's] affirmative defenses that the = Court=20 Ordered assignment of the lease interest, if the assignment was a = breach=20 of the [lease] agreement, was excused.

B.=20 Standards of Review and the Law

We review=20 questions of law like those raised in Tu's first and second issues = de=20 novo. See, e.g., State v. Delany, 197 = S.W.3d 297,=20 300 (Tex. 2006); MCI Telecomms. Corp. v. Tex. Utils. Elec. = Co.,=20 995 S.W.2d 647, 650-51 (Tex. 1999) (instructing that = interpretation of=20 unambiguous contract is question of law, which is reviewed de=20 novo). Courts "may not expand the parties' rights or = responsibilities=20 beyond the limits agreed upon by them in the [indemnity] = contract."=20 Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d = 951, 953=20 (Tex. 1983); accord Crowder v. Scheirman, 186 S.W.3d 116, = 119=20 (Tex. App.--Houston [1st Dist.] 2005, no pet.) ("The supreme court = requires that indemnity agreements be strictly construed to give = effect to=20 the parties' intent as expressed in the agreement.").

We apply=20 the same standard of review and substantive law to Tu's third = issue,=20 concerning the failure to segregate attorney's fees, as we did to = HKDI and=20 Duong's similar challenge. See=20 Chapa, 212 S.W.3d at 313.

C.=20 The Effect of the Judgment's Recitation That No Breach=20 Occurred

In her=20 first issue, Tu argues that the judgment's recitation that "the = lease=20 agreement was not breached" negates any ground for = indemnification.=20 Specifically, Tu contends that only a breach of the lease = agreement with=20 HKDI could trigger her duty to indemnify Nguyen under the lease = assignment=20 between Tu and Nguyen.

We=20 disagree. First, the judgment's recitation on which Tu relies = indicates=20 that the court found no breach not because the failure to = obtain=20 HKDI's prior written consent did not violate the lease agreement = with=20 HKDI, but instead because that violation was excused. The = judgment's=20 recitation that "the lease agreement was not breached by = [Nguyen's]=20 and [Tu's] compliance with a Court Ordered assignment of [Tu's] = lease=20 interest," along with its reference to the jury's = affirmative-defense=20 finding that the "assignment" was "excused" by duress, can be read = as a=20 finding that duress excused the violation of the lease agreement.=20 (Emphasis added.) Accordingly, viewed in context, the judgment's=20 recitation on which Tu relies is not a finding that she did not = violate=20 any duties under the lease assignment.

Additionally, the=20 scope of the lease assignment's indemnity provision was broad. Tu = reads=20 this indemnity provision restrictively, as being triggered only if = Tu and=20 Nguyen were held liable for having breached the lease agreement = with HKDI.=20 In contrast, the lease assignment's indemnity provision actually = read as=20 follows:

Assignor=20 [Tu] hereby indemnifies Assignee [Nguyen] and agrees to hold = [Nguyen]=20 harmless from and against any and all claims, demands, = obligations,=20 liabilities, costs, losses and expenses, including without = limitation=20 attorney's fees resulting from or arising out of all = provisions,=20 agreements, obligations, covenants and conditions which are or = were=20 provided or required to be paid, performed, = discharged,=20 and/or observed prior to the effective date of this = Assignment by=20 [Tu] under or in connection with the Lease [between HKDI and Tu = and=20 Nguyen].

(Emphasis=20 added.) The indemnity provision was thus triggered by, among other = things,=20 costs that resulted from or arose out of any obligation (or other = listed=20 matter) that Tu had to perform under the lease agreement with = HKDI. The=20 scope of this language was thus broader than simply costs = resulting from=20 liability for the lease agreement's breach.

Tu was the=20 party assigning her leasehold interest to Nguyen. The lease = agreement=20 required that "Tenant [Tu and Nguyen] . . . not assign = this=20 Lease, or any interest therein, . . . without first = obtaining=20 the written consent of [HKDI]" and that "[Tu and Nguyen] shall not = sell,=20 convey, or assign any interest in the corporation [sic] without = prior=20 written approval from [HKDI]." It is undisputed that HKDI's = written=20 consent to the lease assignment was not obtained prior to the = assignment's=20 execution. That failure came within the scope of the indemnity=20 provision--whether or not the failure was ultimately excused by = waiver,=20 estoppel, or duress. The judicial recitation that "the lease = agreement was=20 not breached" did not, therefore, negate the contractual basis for = indemnity.

We overrule=20 Tu's first issue.

D.=20 The Challenge That the Claims Against Nguyen Fell Outside the = Indemnity=20 Agreement's Scope

The lease=20 assignment's indemnity provision required Tu to indemnify Nguyen = only for=20 failed obligations (or other listed matters) under the lease = agreement=20 that Tu had to perform "prior to" the lease assignment's = execution. In her=20 second issue, Tu alternatively argues that the failure to obtain = HKDI's=20 prior written consent to the lease assignment could not have = occurred=20 before the lease assignment was executed because the = failure=20 occurred at the time of the assignment's execution. We = reject=20 this argument. Although the lease agreement with HKDI was not = violated=20 until the moment that Tu and Nguyen signed the lease assignment, = the=20 obligation that Tu, as assignor, was required to perform under the = lease=20 agreement with HKDI was to obtain HKDI's prior written = consent to=20 the assignment, which failure necessarily occurred prior to the = lease=20 assignment's execution.

We overrule=20 Tu's second issue.

E.=20 Nguyen's Failure to Segregate Attorney's Fees

In her=20 third issue, Tu urges that = the trial=20 court erred in rendering judgment on the jury's verdict for = attorney's=20 fees because Nguyen failed to segregate the fees attributable to = those=20 claims for which fees were recoverable from those for which they = were=20 not. Tu=20 preserved this challenge by charge objection. See = Sterling, 822 S.W.2d at 10; = Young, 102=20 S.W.3d at 420. We sustain Tu's third issue for the same reasons = that we=20 sustained the same argument under issue three of HKDI and Duong's = appeal.=20 The same remedy applies. See Sterling, 822 S.W.2d at = 11-12;=20 see also Brown, 210 S.W.3d at 659-60.

Conclusion

We reverse=20 those portions of the judgment awarding actual and punitive = damages=20 against HKDI and Duong on Nguyen's tort claims against them, and = we render=20 judgment that Nguyen take nothing on her tort claims against HKDI = and=20 Duong. We reverse that portion of the judgment awarding Nguyen = attorney's=20 fees against HKDI, Duong, and Tu, jointly and severally. We affirm = the=20 judgment of the trial court in all other respects. We remand the = cause for=20 the consideration of the issue of Nguyen's properly recoverable = attorney's=20 fees. See Tex. R. App. P. 44.1(b). This is a limited = remand.=20 See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); = Hansen v. Acad. Corp., 961 S.W.2d 329, 331 (Tex. = App.--Houston=20 [1st Dist.] 1997, pet. denied).

Tim=20 Taft

Justice

Panel consists of Chief Justice = Radack=20 and Justices Taft and Nuchia.=20

1. The Fourteenth Court of Appeals affirmed = the=20 judgment in the partnership suit. Phuong Truong-Tu v. Kim Loan = Nguyen, No. 14-02-00461-CV, 2004 WL 162941 (Tex. = App.--Houston [14th=20 Dist.] Jan. 29, 2004, pet. denied) (memo. op.).=20

2. Kim Loan Nguyen v. Hong Kong = Dev., No.=20 793769 (County Civ. Ct. at Law No. 3, Harris County, Tex.).=20

3. Hong Kong Dev., Inc. v. Kim Loan = Nguyen,=20 No. 802024 (County Civ. Ct. at Law No. 1, Harris County, Tex.). = This was=20 the same county court that had heard the partnership suit between = Nguyen=20 and Tu.=20

4. Nguyen also asserted a third-party claim = against=20 another individual, but she dropped that individual from the suit = in later=20 pleadings.=20

5. At one time in the consolidated suit, = Nguyen had=20 also sued HKDI's and Duong's law firm, seeking to enjoin it from=20 communicating with her in alleged violation of the Texas = Disciplinary=20 Rules of Professional Conduct. However, Nguyen later non-suited = that=20 claim.=20

6. We construe HKDI and Duong's objections = to Nguyen's=20 motion for entry of judgment as a pre-judgment motion for judgment = notwithstanding the verdict ("JNOV") or to disregard jury findings = because=20 the objections did more than merely point out errors in Nguyen's = proposed=20 judgment. See State Bar of Tex. v. Heard, 603 S.W.2d 829, = 833=20 (Tex. 1980) ("We look to the substance of a plea for relief to = determine=20 the nature of the pleading, not merely at the form of title given = to=20 it."); Sandles v. Howerton, 163 S.W.3d 829, 836 (Tex.=20 App.--Dallas 2005, no pet.) (indicating that "a motion should be = governed=20 by its substance and not merely by its title"). For instance, HKDI = and=20 Duong's "objections" (1) requested that the trial court rule in = their=20 favor, (2) stated reasons that the verdict should be disregarded, = (3)=20 argued that no evidence supported certain jury findings, and (4) = raised=20 legal bars to the rendition of judgment on the jury's findings. = See=20 6 Roy W. McDonald & Elaine A. Grafton Carlson, Texas = Civil=20 Practice =A7=A7 8:14-8:18, at 218-25 (2d ed. 1998) (setting out = function of=20 motion to disregard jury findings and motion for JNOV and what = appellate=20 complaints those motions preserve). Moreover, HKDI and Duong's = objections=20 were filed simultaneously with their motion for entry of judgment, = which=20 incorporated by reference their objections, requested a = take-nothing=20 judgment on Nguyen's claims and an award of possession, and = recited that=20 the court was disregarding various jury findings. HKDI and Duong's = objections and motion for entry of judgment thus together = constituted a=20 pre-judgment request for affirmative relief.=20

7. The trial court did not render judgment = for the=20 $49,266.66 that the jury had found that Nguyen, as a result of = Duong's=20 tortious interference, had incurred in costs defending her right = to the=20 leased premises. Therefore, the sole actual damages that the court = awarded=20 Nguyen for Duong's tortious interference (and for HKDI's and = Duong's=20 conspiracy) was $15,000 in mental-anguish damages. The parties = both=20 represent on appeal that Nguyen elected to recover mental-anguish = damages=20 and attorney's fees, rather than also recovering damages for = defending=20 possession. Nguyen further represents on appeal that she did so in = order=20 "to ensure that there was no double recovery" between the = attorney's fees=20 and the costs of defending possession.=20

8. An unsigned docket-sheet entry recites, = "8/13/04 M4=20 JNOV--Denied No = order."=20 However, we generally may not consider recitations in the docket = sheet as=20 rulings. In re Bill Heard Chevrolet, 209 S.W.3d 311, 315 = (Tex.=20 App.--Houston [1st Dist.] 2006, orig. proceeding).=20

9. Volume Millwork, Inc. v. West Houston = Airport=20 Corp., No. 01-03-01214-CV, 2006 WL 3628830, at * 4 (Tex.=20 App.--Houston [1st Dist.] Dec. 14, 2006, pet. denied); = Carlson's Hill=20 Country Beverage, L.C. v. Westinghouse Rd. Joint Venture, 957 = S.W.2d=20 951, 952-53 (Tex. App.--Austin 1997, no pet.).=20

10. Rice v. Pinney, 51 S.W.3d 705, = 707 (Tex.=20 App.--Dallas 2001, no pet.).=20

11. Powell v. Mel Powers Inv. = Builder, 590=20 S.W.2d 837, 839 (Tex. Civ. App.--Houston [14th Dist.] 1979, no = writ).=20

12. After consolidation here, the two cases = retained=20 their original cause numbers, but one judgment was issued = disposing of=20 both cases, and their treatment indicates that this was a true=20 consolidation.=20

13. Texas Rule of Civil Procedure 749 = derives from=20 1925 Revised Statutes article 3987: "Either party may appeal from = a final=20 judgment in such case, to the county court of the county in which = the=20 judgment is rendered . . . ." Revised Statutes, 39th Leg., R.S., = =A7 1,=20 art. 3987, 1925 Tex. Rev. Civ. Stat. 2, 1082. The 1925 Revised = Statutes=20 used the term "county court" to refer both to the constitutional = county=20 court and to the statutory county court. See generally = Revised=20 Statutes, 39th Leg., R.S., =A7 1, arts. 1927-1970, 1925 Tex. = Rev. Civ.=20 Stat. 2, 532-539 (title 41, Courts-County, defining duties and = powers of=20 county court). Rule 749 thus allows an appeal to either the = constitutional=20 county court or the statutory county court.=20

14. We distinguish the authority on which = Nguyen=20 relies for the contrary proposition. In West Anderson Plaza v. = Feyznia, the county court considered the merits of a = DTPA=20 counter-claim asserted on appeal in a forcible-detainer action = without=20 mentioning its lack of jurisdiction over that claim. See = id., 876=20 S.W.2d 528, 531-36 (Tex. App.--Austin 1994, no writ). Neither did = the=20 Feyznia court address the limited jurisdiction applicable = to=20 forcible-detainer suits. See id., passim. The = same is=20 true of the court in Anarkali Enterprises, Inc. v. Riverside = Drive=20 Enterprises, Inc., 802 S.W.2d 25, 27-28 (Tex. App.--Fort = Worth 1990,=20 no writ). Simply put, the Anarkali Enterprises, Inc. and=20 Feyznia courts did not discuss the jurisdictional issue = before=20 us, whereas the cases on which we have relied in this paragraph = did so=20 expressly.=20

15. See Carlson's Hill Country = Beverage,=20 L.C., 957 S.W.2d at 954; cf. Haginas v. Malbis Mem'l = Found.,=20 163 Tex. 274, 278, 354 S.W.2d 368, 371 (1962). Compare Ward v. = Malone, 115 S.W.3d 267, 269 (Tex. App.--Corpus Christi 2003, = pet.=20 denied) (indicating that, generally, county court's appellate = jurisdiction=20 is confined to limits of justice court and that county court has = no=20 jurisdiction over forcible-detainer appeal unless justice court = did); Tex.=20 Gov't Code Ann. =A7 27.031(a)(1) (Vernon 2004) (setting=20 amount-in-controversy civil jurisdiction of justice courts at = $5,000=20 maximum, excluding interest).=20

16. Because there was no subject-matter = jurisdiction=20 over any counter-claims or third-party claims that Nguyen asserted = in the=20 forcible-detainer suit, before consolidation, against HKDI or = Duong, it is=20 immaterial whether the county civil court at law in that suit had = personal=20 jurisdiction over Duong--which Duong argues was lacking over him = at that=20 time.=20

17. Guar. Fed. Sav. Bank v. Horseshoe = Operating=20 Co., 793 S.W.2d 652, 658 (Tex. 1990).=20

18. Nguyen reasserted her third-party claim = for=20 tortious interference against Duong after consolidation, with = leave of the=20 court. We assume without deciding that the reassertion of this = cause of=20 action after consolidation, albeit styled as a "third-party" claim = against=20 unserved third-party defendant Duong in the forcible-detainer = suit, was=20 the equivalent of having asserted the cause of action as a "claim" = against=20 Duong in his capacity as a defendant post-consolidation. See = Tex.=20 R. Civ. P. 71 ("When a party has mistakenly designated any plea or = pleading, the court, if justice so requires, shall treat the plea = or=20 pleading as if it had been properly designated."); Heard, = 603=20 S.W.2d at 833 ("We look to the substance of a plea for relief to = determine=20 the nature of the pleading, not merely at the form of title given = to=20 it."). That is, we assume without deciding that Nguyen invoked the = original jurisdiction of the county civil court at law when she = reasserted=20 this claim against Duong after consolidation.=20

19. Compare Vickrey v. Symes, 527 = S.W.2d=20 836, 837 (Tex. App.--Tyler 1975, no writ) (holding, in appeal from = forcible-detainer judgment, that court of appeals could not review = propriety of special issue, which was alleged to have constituted=20 impermissible general charge on title), with Kaminetzki v. = Doshos I,=20 Ltd., No. 14-03-00567-CV, 2004 WL 1116960, at *4 (Tex. = App.--Houston=20 [14th Dist.] May 20, 2004, no pet.) (memo. op.) (holding, in = appeal from=20 forcible-detainer judgment, that court of appeals could consider = challenge=20 that county court judge was automatically disqualified upon = party's=20 objection).=20

20. Appeal was taken to the district court = because=20 the county court of Nueces County had no civil jurisdiction at = that time.=20 Cahill v. Tex.-Mex. Ry. Co., 40 S.W. 871, 871 (Tex. Civ.=20 App.--San Antonio 1897, writ dism'd).=20

21. We distinguish the authority on which = Nguyen=20 relies for the contrary position. In Knight v. K & K = Properties,=20 Inc., in rejecting a tenant's argument that the landlord = could not=20 collect rents in a forcible-detainer suit because the tenant had=20 relinquished possession of the property by the time of appeal, the = court=20 noted in dictum that the tenant's objection would have been = obviated had=20 the landlord sued for rent in county court and then moved to = consolidate=20 that suit with the forcible-detainer appeal. See id., 589 = S.W.2d=20 860, 862 (Tex. Civ. App.--Fort Worth 1979, no writ). We = note that=20 rents may be sought in a forcible-detainer suit; that is not true = of=20 Nguyen's claims. See Tex. R. Civ. P. 738, 752. In = French=20 v. Moore and Green v. Canon, the courts=20 considered--without discussing the propriety of consolidation or = the trial=20 court's jurisdiction to do so--appeals in cases in which a county = civil=20 court at law had consolidated a forcible-detainer appeal with = another suit=20 in which it was exercising original jurisdiction. See = French, 169=20 S.W.3d 1, 17 (Tex. App.--Houston [1st Dist.] 2004, no pet.);=20 Green, 33 S.W.3d 855, 859 (Tex. App.--Houston [14th = Dist.] 2000,=20 pet. denied). Because consolidation of a forcible-detainer appeal = with an=20 original-jurisdiction suit is error, but not jurisdictional error, = the=20 French and Green courts rightly did not discuss = the=20 issue before them, and the holdings of French and = Green=20 are not instructive in this case. See Walling v.=20 Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) ("We have held = repeatedly=20 that the courts of appeals may not reverse the judgment of a trial = court=20 for a reason not raised in a point of error."). For this reason, = we=20 decline to read French and Green as does=20 Nguyen--especially when the only Texas appellate court (ours, in=20 Cahill) expressly addressing the issue has held contrary = to=20 Nguyen's reading.=20

22. See Allison v. Ark. La. Gas = Co., 624=20 S.W.2d 566, 568 (Tex. 1981).=20

23. HKDI and Nguyen do not argue that they = were=20 harmed by what was, in effect, the total denial of a decision on = the right=20 to immediate possession under their forcible-detainer pleadings = because=20 (1) they might have prevailed under those pleadings and (2) they = could=20 thus have been entitled to recover their costs for Nguyen's = withholding=20 possession of the premises during the pendency of the = forcible-detainer=20 appeal. See Tex. R. Civ. P. 752. Accordingly, we do not = consider=20 this aspect in our mootness analysis.=20

24. Because we resolve in HKDI and Duong's = favor=20 their legal-sufficiency challenges to many of the claims and = damages that=20 the trial court allowed by trial amendment, we need not determine = whether=20 the trial court erred in allowing those trial amendments.=20

25. HKDI and Duong preserved this complaint = by moving=20 for directed verdict and by objecting to the submission of jury = question=20 number 6, concerning tortious interference, on this ground. = See Cecil=20 v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1994).=20

26. HKDI and Duong preserved this challenge = by the=20 implicit overruling of their objections to Nguyen's proposed = judgment and=20 their own motion for entry of judgment, which asserted this = argument and=20 which we have construed as pre-judgment motions for JNOV or to = disregard=20 jury findings. See Tex. R. App. P. 33.1(a)(2)(A); = Lenz v.=20 Lenz, 79 S.W.3d 10, 13 (Tex. 2002) (holding that appellant = preserved=20 complaint raised in pre-judgment JNOV because trial court = implicitly ruled=20 on JNOV motion by virtue of substance of its judgment that was = later=20 rendered); First Nat'l Indem. Co. v. First Bank & Trust of = Groves,=20 Tex., 753 S.W.2d 405, 407 (Tex. App.--Beaumont 1998, no = pet.).=20 Additionally, HKDI and Duong moved for directed verdict on the=20 civil-conspiracy claim because there was no evidence of "any = wrongful or=20 unlawful act." See Cecil, 804 S.W.2d at 510-11.=20

27. Nguyen asserts that the evidence showed = that "the=20 conspiracy included more participants than simply Tu and Duong." = However,=20 the jury was asked to determine only whether HKDI, Tu, and Duong = were=20 co-conspirators, not any other person. An element of a civil = conspiracy=20 claim is two or more persons participate, which means that it was = Nguyen's=20 burden to request determinations of who the participants were. = See=20 Tri v. = J.T.T., 162=20 S.W.3d 552, 556 (Tex. 2005). In any = event, "an=20 object to be accomplished" is also an element of the claim, and = the only=20 "object" on which Nguyen sought a jury determination was Duong's = tortious=20 interference--one for which we have already held that Nguyen = adduced=20 legally insufficient evidence. See id.=20

28. HKDI and Duong preserved this challenge = by the=20 implicit overruling of their objection to Nguyen's proposed = judgment and=20 their own motion for entry of judgment, which asserted that the = court=20 "should not award judgment to [Nguyen]" on jury question = 6,=20 concerning liability for tortious interference. (Emphasis added.) = See=20 Tex. R. App. P. 33.1(a)(2)(A); Lenz, 79 S.W.3d at = 13;=20 First Nat'l Indem. Co., 753 S.W.2d at 407. We deem a = request that=20 the court not "award judgment" on a liability question to be broad = enough=20 to include a request to disregard any damages finding that is = dependant on=20 that liability question.=20

29. HKDI and Duong preserved this = challenged by the=20 implicit overruling of their objections to Nguyen's motion for = entry of=20 judgment and of their motion for judgment, which asserted that no = evidence=20 supported this damages finding. See Tex. R. App. P.=20 33.1(a)(2)(A); Lenz, 79 S.W.3d at 13; First Nat'l = Indem.=20 Co., 753 S.W.2d at 407.=20

30. HKDI and Duong preserved this challenge = by=20 objecting to the submission of jury question 7 on this basis. = See=20 Cecil, 804 S.W.2d at 510-11.=20

31. In any event, we have already held that = legally=20 insufficient evidence supports the jury's civil-conspiracy = findings=20 against HKDI and Duong.=20

32. HKDI and Duong sufficiently preserved = this=20 challenge by the implicit overruling of their objection to = Nguyen's=20 proposed judgment and their own motion for entry of judgment, = which=20 asserted (1) that the jury's findings of malice against Duong = "improperly=20 rest[ed] on the conspiracy finding, in that no finding of damages = exists=20 as to the conspiracy claim"; (2) that the jury's award of punitive = damages=20 against HKDI and Duong "does not rest on a finding of actual = damages"; and=20 (3) that "no evidence supports the jury's finding of punitive = damages"=20 against HKDI and Duong. See Tex. R. App. P. = 33.1(a)(2)(A);=20 Lenz, 79 S.W.3d at 13; First Nat'l Indem. Co., = 753=20 S.W.2d at 407. Although these objections differ slightly from that = raised=20 on appeal, they together sufficiently advised the court that = submission of=20 the punitive-damages issue was improper because of the failure of = a=20 predicate concerning actual damages. See Tex. R. App. P.=20 33.1(a)(1)(A) (providing that, to preserve error, motion must = state=20 grounds "with sufficient specificity to make the trial court aware = of the=20 complaint.").=20

33. HKDI and Duong preserved this challenge = by=20 objecting to the submission of jury question 16 on this basis. = See=20 Cecil, 804 S.W.2d at 510-11.=20

34. The malice question supporting the = award of=20 punitive damages was predicated on a finding that Duong was liable = for=20 civil conspiracy only. The only actual damages awarded were for = Duong's=20 tortious interference, not civil conspiracy. However, his = liability for=20 civil conspiracy was implicitly predicated on his liability for = tortious=20 interference. Because HKDI and Duong do not argue otherwise on = appeal, we=20 assume without deciding the award of actual damages against Duong = for=20 tortious interference could, in the abstract, support an award of = punitive=20 damages against Duong under this charge.=20

35. HKDI and Duong also argue that the = trial court=20 erred in rendering judgment for the attorney's fees that the jury = found=20 because they could not be supported by Property Code section = 24.006(c),^{=20
(36)}=20

36. - =A7 =20

37. Although HKDI and Duong did not state = their=20 challenge (2) in the trial court in the exact terms stated on = appeal, they=20 did assert below that Nguyen "cannot recover legal fees based on = her=20 declaratory judgment action," which we deem sufficiently to have = preserved=20 their appellate argument.=20

38. See Tex. Civ. Prac. & Rem. = Code Ann.=20 =A7 37.009 (Vernon 1997); Tex. = Prop. Code=20 Ann. =A7 24.006 (Vernon 2000); Tex. R. Civ. P. 752.=20

39. See Tony Gullo Motors I, L.P. v. = Chapa, 212=20 S.W.3d 299, 311 (Tex. 2006) ("Absent a contract or statute, trial = courts=20 do not have inherent authority to require a losing party to pay = the=20 prevailing party's fees.").=20

40. In a few paragraphs in their opening = and reply=20 briefs, HKDI and Duong mention that the lease agreement's = anti-assignment=20 clause "nullifies" or "violates" the lease assignment as a matter = of law,=20 even if the assignment occurs "by operation of law," which might = be a=20 reference to the court's order to sign the lease assignment. The = other=20 times that they mention the anti-assignment clause, they do so in = support=20 of their jurisdictional or no-evidence arguments, not as a = challenge to=20 the jury's duress finding. These brief statements do not amount to = appellate challenges to the jury's duress finding. Additionally, = as=20 mentioned above, their issue two is phrased in terms of whether = the trial=20 court erred in allowing Nguyen belatedly to assert waiver and = estoppel,=20 which argument could not apply to duress, and HKDI and Duong = expressly=20 state that they "ha[ve] never challenged the merits of the issue = of=20 possession," to which the merits of the duress defense relates.=20

41. See Tex. R. Civ. P. 94 = (indicating that=20 estoppel and duress are affirmative defenses); In re = S.A.P., 156=20 S.W.3d 574, 576 (Tex. 2005) (quoting rule 94 concerning estoppel's = being=20 avoidance or affirmative defense); In re Epic Holdings, = Inc., 985=20 S.W.2d 41, 57 (Tex. 1998) ("Waiver is an affirmative defense"); = Hardin=20 v. Hardin, 597 S.W.2d 347, 348 (Tex. 1980) (describing duress = as=20 affirmative defense).=20

42. "An affirmative defense 'seeks to = establish an=20 independent reason that the plaintiff should not recover' and is = 'thus [a=20 defense] of avoidance, rather than a defense in denial'; that is, = it is a=20 defense of confession and avoidance." Hamm v. Millennium = Income Fund,=20 L.L.C., 178 S.W.3d 256, 268 (Tex. App.--Houston [1st Dist.] = 2005,=20 pet. denied) (quoting In re C.M., 996 S.W.2d 269, 270 = (Tex.=20 App.--Houston [1st Dist.] 1999, no pet.) and Great Am. Prods. = v.=20 Permabond Int'l, 94 S.W.3d 675, 683 (Tex. App.--Austin 2002, = pet.=20 denied)).

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