Opinion issued November 29,=20
2007
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO. =
01-06-00690-CV
AMIRALI M. NARSI,=20
Appellant
V.
WEINGARTEN REALTY INVESTORS,=20
Appellee
On Appeal from the 189th District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
2003-53096
MEMORANDUM =
OPINION
<=
/SPAN>Weingarten=20
Realty Investors sued Amirali M. Narsi for breach of a lease. =
After a=20
bench trial, the trial court found that the lease was ambiguous =
and issued=20
a final judgment in favor of Weingarten. ![3DFootnote](3D"")
<=
/SPAN>On=20
appeal, Narsi argues that the final judgment was improper because=20
(1) the trial court misconstrued the plain language of the =
Original=20
Lease, Renewal Agreement, and Lease Assignment; (2) the trial =
court failed=20
to have Weingarten mitigate its damages; and (3) the trial court =
granted=20
attorney=E2=80=99s fees without evidence showing that they were =
reasonable and=20
necessary. We affirm.
Background
&=
nbsp; Jenny=20
Hyun, associate counsel for Weingarten, testified that, in 1995,=20
Weingarten entered into a commercial lease (=E2=80=9Cthe Original =
Lease=E2=80=9D) with=20
Narsi, who was going to open a Dollar Store. The Original Lease =
was to=20
remain in effect until November 30, 1998. In 1998, the parties =
extended=20
the lease (=E2=80=9Cthe Renewal Agreement=E2=80=9D) until November =
30, 2001. Hyun=20
testified that, before the Renewal Agreement expired, Narsi =
assigned the=20
lease to Ahmed Mamji, who was going to take over the Dollar Store. =
Their =
=E2=80=9CLease Assignment, Assumption & First Amendment =
to Lease=E2=80=9D (=E2=80=9Cthe =
Lease Assignment=E2=80=9D)=20
prolonged the Renewal Agreement until November 30, 2006. After the =
Renewal=20
Agreement term expired, Mamji defaulted on the Lease Assignment.=20
Weingarten locked Mamji out of the premises, relet the premises, =
and sued=20
Narsi, alleging that he was liable for the time remaining on the =
Lease=20
Assignment.
&=
nbsp; Paragraph=20
4 of the Lease Assignment states as follows:
[Mamji] does =
hereby accept=20
this Assignment, assume and agree to perform the covenants, duties =
and=20
obligations of =E2=80=9CTenant=E2=80=9D under said Lease =
Contract (including the=20
payment of rent), and agrees to be bound by all of such covenants, =
duties=20
and obligations of Tenant as fully to the same extend as if =
[Mamji] had=20
been the original party designated as =E2=80=9CTenant=E2=80=9D =
thereunder; and [Mamji]=20
shall be fully, directly and primarily liable for the performance =
thereof,=20
and it is agreed that the liability of [Narsi] and [Mamji] is =
joint and=20
several and may be enforced against either without any nature of =
notice=20
to, demand upon, proceeding against or judgment against the other. =
(Emphasis added.) =
Paragraph=20
5 provides as follows:
[Weingarten] =
hereby consents=20
to this Assignment with the express understanding that this =
Assignment=20
shall in no way relieve [Narsi] of liability for the performance =
of the=20
covenants, duties and obligations of [Mamji] under said Lease=20
Contract, including liability for the full amount of rental =
and any=20
additional charges, provided to be paid by [Mamji] to [Weingarten] =
pursuant to said Lease Contract; and [Narsi] shall continue =
to be=20
directly and primarily liable to [Weingarten] for the performance =
of all=20
covenants, duties and obligations of [Mamji] under such Lease=20
Contract, including payment of rental, and such liability =
shall remain=20
and continue in full force and effect as to any further assignment =
or=20
transfer of the Lease Contract, whether or not [Narsi] =
shall have=20
received any notice or consented to such assignment or transfer, =
and=20
whether or not [Weingarten] may subordinate any of its liens =
and/or=20
security interests, contractual or statutory; provided, however, =
that any=20
sum paid by [Mamji] to [Weingarten] shall be credited on the =
aforesaid=20
obligation of [Narsi]. [Weingarten] shall not be obligated to give =
any=20
notice to [Mamji] which is not presently provided for as a duty of =
[Weingarten] under said Lease =
Contract.
(Emphasis=20
added.)
=
The=20
parties disagree with respect to the definition of the term =
=E2=80=9Clease=20
contract.=E2=80=9D The=20
trial court found the Lease Assignment to be ambiguous and stated =
that the=20
court believed that Weingarten intended Narsi to be the guarantor, =
but it=20
was not sure if the leases were enough to =E2=80=9Cget them =
there.=E2=80=9D The trial=20
court also considered the fact that Weingarten drafted the Lease=20
Assignment. After deliberation, the trial court awarded Weingarten =
$347,274.35
plus =
attorney=E2=80=99s=20
fees.
Lease=20
Interpretation
<=
/SPAN>In=20
his first and second issues, Narsi contends that the trial court =
erred in=20
granting final judgment in favor of Weingarten because ambiguity =
exists=20
regarding whether, under the terms of the Lease Assignment, =
Narsi=E2=80=99s=20
liability extended beyond November 30, 2001=E2=80=94the end of the =
Renewal=20
Agreement. Weingarten asserts that there is no ambiguity and all =
parties=20
agreed to the intent of the Lease Assignment. The Lease Assignment =
at=20
issue provides that:
WHEREAS, by Lease Contract (the =
=E2=80=9COriginal Lease=E2=80=9D)=20
dated September 8, 1995, WEINGARTEN REALTY INVESTORS, therein =
and=20
herein referred to as =E2=80=9CLandlord,=E2=80=9D leased to =
AMARALI [sic] M. NARSI and=20
RAJAB A. RAHIM, therein called =E2=80=9CTenant=E2=80=9D and =
hereinafter called =E2=80=9CAssignor,=E2=80=9D=20
a storeroom . . . for a term commencing November 21, 1995, and =
terminated=20
November 30, 2001, reference being here made to such Lease =
Contract for=20
all relevant purposes; and
WHEREAS, the Original Lease was amended =
by a=20
Renewal Letter Agreement dated September 30, 1998 (said Original =
Lease,=20
together with the Renewal Letter Agreement shall hereinafter be =
referred=20
to as the =E2=80=9CLease Contract=E2=80=9D);
and
<=
/SPAN>.=20
. .
[Narsi] does hereby sell, assign and =
transfer unto=20
Assignee [Mamji], effective April 1, 2001 (hereafter called =
=E2=80=9CEffective=20
Date=E2=80=9D), all of [Narsi=E2=80=99s] leasehold interest under =
the aforesaid Lease=20
Contract herein above referred to for the entire remainder of the =
lease=20
term (such period being sometimes herein referred to as the =
=E2=80=9Cassignment=20
period=E2=80=9D).
<=
/SPAN>Absent=20
ambiguity, we interpret a contract as a matter of law. DeWitt =
County=20
Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). =
=E2=80=9CWhether a=20
contract is ambiguous is a question of law that must be decided by =
examining the contract as a whole in light of the circumstances =
present=20
when the contract was entered.=E2=80=9D Columbia Gas =
Transmission Corp. v. New=20
Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). =E2=80=9CIf =
the written=20
instrument is so worded that it can be given a certain or definite =
legal=20
meaning or interpretation, then it is not ambiguous and the court =
will=20
construe the contract as a matter of law.=E2=80=9D Coker v. =
Coker, 650=20
S.W.2d 391, 393 (Tex. 1983). =E2=80=9CAn ambiguity exists only if =
the contract=20
language is susceptible to two or more reasonable =
interpretations.=E2=80=9D Am.=20
Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. =
2003). The=20
language in a contract is to be given its plain grammatical =
meaning unless=20
doing so would defeat the parties=E2=80=99 intent. DeWitt =
County Elec.=20
Coop., 1 S.W.3d at 101. We presume that the parties intended =
every=20
clause to have an effect. Heritage Res., Inc. v. =
NationsBank, 939=20
S.W.2d 118, 121 (Tex. 1996).
<=
/SPAN>In=20
our analysis, we must determine whether the parties have =
contracted to=20
extend Narsi=E2=80=99s obligation in the lease contract through =
the assignment=20
period of the Lease Assignment. Narsi contends that the =
=E2=80=9CLease Contract=E2=80=9D=20
expired by its terms on November 30, 2001=E2=80=94at the end of =
the Renewal=20
Agreement=E2=80=94and that the Lease Assignment does not keep =
Narsi liable for any=20
extension of the lease contract. Weingarten, on the other hand, =
contends=20
that Narsi remains liable for the entire remainder of the =
assignment=20
period=E2=80=94November 30, 2006.
<=
/SPAN>If=20
a contract is worded so that a court may properly give it a =
definite or=20
certain legal meaning or interpretation, then it is not ambiguous. =
Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 =
(Tex.=20
1996). A contract is ambiguous only when there exists a genuine=20
uncertainty as to which of two meanings is proper. Columbia =
Gas,=20
940 S.W.2d at 589. However, an ambiguity does not arise simply =
because the=20
parties advance conflicting interpretations of the contract. =
Forbau v.=20
Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). In order =
for an=20
ambiguity to exist, both interpretations must be reasonable. =
Nat=E2=80=99l=20
Union Fire Ins. Co. v. CBI Industries, Inc., 907 S.W.2d 517, =
520 (Tex.=20
1995).
<=
/SPAN>Narsi=20
argues that the Lease Assignment extends the lease to November 30, =
2006,=20
but does not extend the =E2=80=9Clease contract,=E2=80=9D which is =
a defined term. We=20
disagree. The term =E2=80=9Clease,=E2=80=9D which is used =
throughout the Lease Assignment,=20
is defined in the Renewal Agreement as follows:
Reference is made to the captioned Lease =
Contract=20
dated September 8, 1995, together with all subsequent amendments =
and=20
extensions thereto, collectively herein referred to as =
=E2=80=9CLease,=E2=80=9D for a term=20
which commenced November 21, 1995, and shall terminate November =
30,=20
1998.
Almost three years later, on May 22, =
2001, the=20
Lease Assignment references the term =E2=80=9Clease=E2=80=9D as =
follows:
The term of the Lease is hereby extended =
through=20
November 30, 2006, unless sooner terminated in accordance with the =
terms=20
and conditions set forth in the Lease.
Paragraph 2 of the Lease Assignment also =
uses the=20
term =E2=80=9Clease=E2=80=9D:
Commencing December 1, 2001, Tenant =
shall pay to=20
Landlord, as Minimum Rent, in accordance with the terms and =
conditions of=20
Article IV of the Lease, the following . . . =
.
Only the Original Lease contains =
=E2=80=9Carticles.=E2=80=9D=20
Furthermore, paragraph 12 of the Lease Assignment states =
=E2=80=9Call defined=20
terms used herein shall have the same meaning as when used in the =
Lease=20
unless another meaning is clearly indicated.=E2=80=9D The term =
=E2=80=9Clease=E2=80=9D in the=20
Lease Assignment refers to the Original Lease and the Renewal =
Agreement.=20
Consequently, the phrase =E2=80=9Centire remainder of the lease =
term=E2=80=9D in the Lease=20
Assignment refers to the lease=E2=80=99s extension through =
November 30, 2006. When=20
the lease contract phrase is read in the context of the assignment =
period=20
contained in the Lease Assignment, its meaning becomes =
clear=E2=80=94Narsi remains=20
liable through the Lease Assignment=E2=80=99s extension of the =
lease contract.=20
<=
/SPAN>We=20
overrule Narsi=E2=80=99s first and second =
issues.
Mitigation of=20
Damages
<=
/SPAN>In=20
his third issue, Narsi complains that Weingarten failed to =
mitigate its=20
damages. Weingarten asserts it properly mitigated its=20
damages.
<=
/SPAN>A=20
landlord has a duty to make reasonable efforts to mitigate damages =
when=20
the tenant breaches the lease and abandons the property. Tex. Prop. Code Ann. =C2=A7 91.006 =
(Vernon 2007);=20
Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., =
948=20
S.W.2d 293, 299 (Tex. 1997). However, the landlord is not required =
to fill=20
the premises with any willing tenant; the replacement tenant must =
be=20
suitable under the circumstances. Austin Hill, 948 S.W.2d =
at 299.=20
The landlord=E2=80=99s failure to use reasonable efforts to =
mitigate damages bars=20
the landlord=E2=80=99s recovery against the breaching tenant only =
to the extent=20
that damages reasonably could have been avoided. Id. The =
tenant=20
bears the burden to prove that the landlord has mitigated or =
failed to=20
mitigate damages and the amount by which the landlord reduced or =
could=20
have reduced its damages. Id.
<=
/SPAN>Pursuant=20
to section 16.02 of the Original Lease, Weingarten does not have =
the duty=20
to relet the leased premises, but it does have a duty to =
=E2=80=9Cdiminish[] by=20
any net sums thereafter received by Landlord through reletting the =
Lease=20
Premises during said period.=E2=80=9D According to =
section 91.006 of the=20
Texas Property Code, a landlord has a duty to mitigate damages, =
=E2=80=9Ca=20
provision of a lease that purports to waive a right or to exempt a =
landlord from liability or duty under this section is =
void.=E2=80=9D Tex. Prop. Code Ann. =
=C2=A7 91.006=20
(Vernon 2007). The Original Lease was signed before section 91.006 =
of the=20
Texas Property Code was enacted, but the Renewal Agreement was =
signed=20
afterwards. Assuming without deciding that section 91.006 applies =
here,=20
Weingarten gave Narsi offsets and credits once its new tenant =
moved in.=20
Mamji tried to bring in a third party by the name of Fatehali =
Chatoor to=20
take over the lease. Weingarten did not have a duty to accept the =
tenant=20
presented by Mamji. Narsi failed to present credible evidence to =
the trial=20
court to demonstrate that Weingarten failed to mitigate its =
damages.=20
Because Weingarten did not have a duty to accept the third party =
tenant=20
Mamji presented, and because Weingarten gave Narsi offsets and =
credits=20
once a new tenant moved in, we hold that Weingarten properly =
mitigated its=20
damages.
<=
/SPAN>We=20
overrule Narsi=E2=80=99s third issue.
Attorney=E2=80=99s=20
Fees
<=
/SPAN>In=20
his fourth issue, Narsi argues that Weingarten is not entitled to =
recover=20
attorney=E2=80=99s fees because there was no evidence or expert =
testimony=20
verifying that the fees were reasonable and necessary. We use an =
abuse of=20
discretion standard of reviewing attorney=E2=80=99s fees awards in =
non-declaratory=20
judgment actions. See Ridge Oil Co. v. Guinn Invs. Inc., =
148 S.W.3d=20
143, 163 (Tex. 2004).
<=
/SPAN>Weingarten=20
asserts that it is entitled to attorney=E2=80=99s fees because it =
won its breach=20
of contract claim against Narsi. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.001(8) (Vernon 1997) (attorney=E2=80=99s =
fees recoverable for=20
breach of contract claim). When a prevailing party in a breach of =
contract=20
suit seeks attorney=E2=80=99s fees, section 38.001 mandates an =
award of reasonable=20
fees if there is proof that the fees are reasonable. See =
Atlantic=20
Richfield Co. v. Long Trusts, 860 S.W.2d 439, 449 (Tex. =
App.=E2=80=94Texarkana=20
1993, writ denied); Budd v. Gay, 846 S.W.2d 521, 524 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 1993, no writ). A trial court =
has the discretion=20
to fix the amount of attorney=E2=80=99s fees, but it does not have =
the discretion=20
to completely deny attorney=E2=80=99s fees if they are proper =
under section=20
38.001. See Budd, 846 S.W.2d at 524. The party seeking to =
recover=20
attorney=E2=80=99s fees carries the burden of proof. See =
Stewart Title Guaranty=20
Co. v. Sterling, 822 S.W.2d 1, 8, 10 (Tex. =
1992).
<=
/SPAN>Weingarten=E2=80=99s=20
attorney, Richard Howell, testified that he had expended =
approximately=20
$13,000 at the rate of $225 per hour. Howell also testified that =
the=20
services provided and the hourly rates were reasonable based on =
the issues=20
involved in the case. Finally, Howell testified that $2,500 was a=20
reasonable legal fee to charge if the case was appealed to this =
court; and=20
$5,000 would be a reasonable fee if a petition for review is filed =
with=20
the Texas Supreme Court. Howell=E2=80=99s testimony was =
uncontroverted.=20
<=
/SPAN>What=20
amount of attorney=E2=80=99s fees is reasonable is a question of =
fact. See=20
Int=E2=80=99l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 =
(Tex. 1971).=20
But where, as here, trial counsel=E2=80=99s testimony concerning =
attorney=E2=80=99s fees=20
for the trial of a case is clear, positive and direct, and =
uncontroverted,=20
the court takes it as true as a matter of law. See Ragsdale v.=20
Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). =
This is=20
especially the case where the opposing party had the means and =
opportunity=20
to challenge the testimony and failed to do so. See id.; =
see=20
also Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7 38.003 (Vernon 1997) (stating rebuttable =
presumption=20
that usual and customary attorney=E2=80=99s fees are reasonable). =
Because Narsi=20
failed to take the available opportunity to question or controvert =
Howell=E2=80=99s testimony, we hold that the testimony established =
Weingarten=E2=80=99s=20
reasonable and necessary legal fees through trial of the case as a =
matter=20
of law.
<=
/SPAN>We=20
overrule Narsi=E2=80=99s fourth issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Taft, Hanks, =
and=20
Higley. |