Opinion issued August = 21,=20 2008
=20
The parties signed the sublease =
agreement=20
on July 1, 2002. The terms contemplated rental of the premises for =
a=20
three-year lease term for use as a non-profit software-training =
center,=20
with a monthly rental payment of $2,107.00, plus monthly charges =
for=20
taxes, insurance and common area maintenance ("CAM"), and a =
ten-percent=20
penalty for amounts not paid within five days of the due date. The =
agreement specified that Patton, as subtenant, subleased the =
premises from=20
Randall's "upon the same terms, conditions, requirements and =
provisions as=20
are set forth in the Master Lease," by which Randall's originally =
leased=20
the premises on November 22, 1982, and further stated that the =
sublease=20
agreement "incorporated . . . by reference" the entire master =
lease. The=20
sublease listed eight "events of default," which included failing =
or=20
refusing to pay rent, vacating or abandoning the premises, and =
"[a]ny=20
event of default described in the Master Lease." In addition, the =
sublease=20
referred to the master lease in paragraphs that addressed the =
lease term,=20
minimum rent, late charges, and insurance. Patton's rights as =
subtenant=20
were further "subject to all the terms and conditions of the =
Master=20
Lease," pursuant to paragraph 4 of the sublease agreement. Though =
Patton=20
requested a copy of the master lease in an attempt to clarify =
escalating=20
CAM obligations, it is undisputed that he did not ever receive the =
requested copy. After a dispute arose over the =
escalating=20
CAM obligations and Patton's complaints that he had to do his own=20
maintenance despite the CAM fees, Patton notified Randall's of its =
intent=20
to abandon the leased premises and abandoned the premises in March =
2003.=20
On May 29, 2003, Randall's issued a notice to Patton that (1) =
stated an=20
outstanding balance due for unpaid rent and fees of $10,353.48, =
(2)=20
demanded that the rental premises be vacated by May 29, 2003 lest =
a=20
forcible-entry-and-detainer action be filed, and (3) notified of=20
Randall's' intent "to file suit . . . to recover all rent and =
other=20
amounts, including, but not limited to, attorney's fees due under =
the=20
terms of the Sublease." When Patton did not comply by payment, =
Randall's=20
filed this action for breach of contract. Randall's' live pleadings =
allege that=20
Patton owed "a portion" of unpaid CAM charges for the months of =
October=20
2002 through February 2003. Randall's sought a money judgment for =
rent=20
that it claimed was unpaid; unpaid CAM charges of $638.60 per =
month;=20
unpaid delinquent charges; and the balance of rent due under the =
full=20
lease term after Patton stopped making rental payments and =
abandoned the=20
leased premises. Randall's also sought consequential damages =
related to=20
recovering possession and to re-letting, renovating, and altering =
the=20
premises, in addition to attorney's fees. Patton answered by a =
general=20
denial and claimed offsets on the amounts allegedly due. Randall's=20
called Patton as its sole witness at the bench trial and relied on =
the=20
following exhibits: the sublease signed by the parties, the May =
29, 2003=20
notice issued by Randall's, and an unauthenticated computer =
printout that=20
purported to compile monthly amounts due. Patton disputed the =
amounts due=20
under Randall's' compilation, stating that certain arrearages had =
been=20
corrected, but he agreed that he had made no payments after =
vacating the=20
leased premises. Patton also stated that he "did not know" what =
CAM=20
comprised and that his company had to carry its own insurance =
because=20
"Randall's didn't do that" and that his company incurred between =
"$15,000=20
and $20,000" in expenses for repairs to bring the premises up to =
code so=20
that insurance could be obtained. In response=20
to his counsel's request, Patton read paragraph 3.3 of the =
sublease into=20
evidence. This paragraph governed CAM and required payment of =
"subtenant's=20
proportionate share of common area maintenance costs as described =
in=20
section 10 of the initial lease [and] subtenant's proportionate =
share of=20
taxes as described in [s]ection 11 of the initial lease." At this=20
juncture, the trial court questioned Randall's' counsel about the =
absence=20
of a copy of the master lease. When Randall's' counsel's only =
response was=20
that paragraph 3.3 referred to the master lease and that paragraph =
1=20
incorporated the master lease by reference, the trial court =
emphasized yet=20
again a "need to see [either] paragraph 10 of the initial lease," =
or=20
language in the sublease that duplicated that language, and =
remarked on an=20
inability "to make factual determinations upon a lease that refers =
to a=20
document that's not here," specifically, the master lease. After =
an=20
unrecorded bench conference, Randall's "chose to go forward." =
Patton=20
testified that the sublease was the only lease he received, that =
he had=20
asked Randall's' headquarters to "delineate the CAM charges, what =
they=20
were," because he "did not know," and that he ultimately notified=20
Randall's' headquarters that "we were going to have to move out =
because=20
the CAM charges were way above what we thought they would be." =
Patton=20
stated that his firm had to do its own maintenance. Though the =
sublease=20
refers to acceptance of the premises "AS IS, WHERE IS," by an =
added=20
interlineation, Patton was not able to test whether systems were=20
functioning because the premises had no electrical power. Patton =
described=20
the condition of the premises when he took possession as=20
follows: The=20
interior doors were missing. The interior glass was missing. The =
ceiling=20
tile was missing. The light fixtures had been removed, and naked =
wires=20
were hanging down from the ceiling. This was not only in one room. =
This=20
was in almost all the rooms. Water - there was [sic] some water =
pipes that=20
were leaking that we fixed before we could move in. And the air=20
conditioning on the top of the building was not =
working. At the=20
close of the bench trial, the trial court took the case under =
advisement=20
and asked that each party submit findings of fact and conclusions =
of law.=20
The court later rendered a take-nothing judgment in favor of =
Patton and=20
signed his proposed findings of fact and conclusions of law. =
Randall's=20
filed a motion for new trial and a motion to modify, correct, or =
reform=20
the judgment, which the trial court denied after a non-evidentiary =
hearing. We review=20
the trial court's conclusions of law independently to determine =
their=20
correctness from the facts found. Butler v. Arrow Mirror & =
Glass,=20
Inc., 51 S.W.3d 787, 792 (Tex. App.--Houston [1st Dist.] =
2001, no=20
pet.); see In re K.R.P., 80 S.W.3d 669, 674 (Tex. =
App.--Houston=20
[1st Dist.] 2002, pet. denied) (stating that trial court's legal=20
conclusions are not binding on appellate court and are reviewable =
de=20
novo). Findings of fact in a case tried to the court have the same =
force=20
and effect as a jury's verdict on questions and are reviewable for =
legal=20
and factual sufficiency under the same standards that govern jury=20
findings. Anderson v. City of Seven Points, 806 S.W.2d =
791, 794=20
(Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex.=20
App.--Houston [1st Dist.] 1999, no pet.). When, as here, the =
appellate=20
record contains a complete reporter's record of the trial, the =
trial=20
court's findings of fact are not conclusive, but are subject to =
the same=20
legal and factual sufficiency challenges. Min, 991 S.W.2d =
at 500.=20
As the=20
party claiming breach of contract, Randall's had the burden of =
proof at=20
trial and must demonstrate on appeal that the evidence =
conclusively=20
established all vital facts in support of its claim. See =
Sterner v.=20
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In =
reviewing a=20
legal-sufficiency challenge by the party who had the burden of =
proof at=20
trial, we examine the entire record to determine if the =
proposition=20
contrary to the jury's finding is established as a matter of law, =
and we=20
will sustain the challenge only in that case. See id., =
767 S.W.2d=20
at 690; see also City of Keller v. Wilson, 168 S.W.3d =
802, 810=20
& n.16 (Tex. 2005) (citing, among other cases, =
King=20
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)) =
(listing=20
four instances in which legal sufficiency challenge must be =
sustained, as=20
follows: (1) complete absence of vital fact; (2) rules of law or =
evidence=20
preclude according weight to only evidence offered to prove vital =
fact;=20
(3) evidence offered to prove vital fact is no more than =
scintilla; and=20
(4) evidence conclusively establishes opposite of vital fact). =
In applying=20
the legal-sufficiency standard, we must credit evidence that =
supports the=20
judgment if reasonable jurors could and disregard contrary =
evidence unless=20
reasonable jurors could not. City of Keller, 168 S.W.3d =
at 827.=20
Accordingly, we review the evidence in the light most favorable to =
the=20
verdict, but disregard all contrary evidence that a reasonable =
jury could=20
have disbelieved. Ysleta Indep. Sch. Dist. v. Monarrez, =
177=20
S.W.3d 915, 917 (Tex. 2005) (citing City of Keller, 168 =
S.W.3d at=20
812). If the evidence falls within the zone of reasonable =
disagreement, we=20
may not invade the fact-finding role of the trial judge, who alone =
determines the credibility of the witnesses, the weight to give =
their=20
testimony, and whether to accept or reject all or any part of that =
testimony. See City of Keller, 168 S.W.3d at 822. =
Randall's'=20
first issue challenges the take-nothing judgment rendered on its =
claim=20
that Patton breached the sublease contract. Randall's contends =
that it=20
established its right to prevail as a matter of law and therefore=20
contends, in its second issue, that it was also entitled to =
prevail on its=20
request for attorney's fees. We disagree. A.=20
Anticipatory Breach--Failure of Proof Randall's'=20
pleadings allege that Patton breached the sublease contract and =
was liable=20
for damages for the remaining lease term, in addition to other =
damages=20
related to re-leasing and modifying the vacated premises for a new =
tenant.=20
Texas courts recognize four possible causes of action by a =
landlord=20
against a tenant who breaches a lease by abandoning the premises.=20
Austin Hill Country Realty, Inc. v. Palisades Plaza, =
Inc., 948=20
S.W.2d 293, 300 (Tex. 1997). The landlord may (1) maintain the =
lease and=20
sue for rent as it becomes due; (2) treat the breach as an =
anticipatory=20
repudiation, repossess, and sue for the present value of future =
rentals=20
reduced by the reasonable cash market value of the property for =
the=20
remainder of the lease term; (3) treat the breach as anticipatory, =
repossess, release the property, and sue the tenant for the =
difference=20
between the contractual rent and the amount received from the new =
tenant;=20
or (4) declare the lease forfeited (if the lease so provides) and =
relieve=20
the tenant of liability for future rent. Id. Randall's'=20
allegations in this case invoke the theory that Patton was liable =
for=20
damages for anticipatory breach of the sublease under the second =
or third=20
options outlined in Austin Hill Country Realty. See =
id.=20
Regarding these two options, Austin Hill Country =
Realty=20
overruled prior law and adopted the rule applied in most American=20
jurisdictions by recognizing that a landlord has a duty to =
mitigate when a=20
tenant abandons the leased premises and stops paying rent. =
Id.,=20
at 295-300. 1.=20
Patton's Indebtedness Randall's=20
reiterates on appeal its postjudgment contentions that the =
undisputed=20
evidence conclusively establishes (1) by Patton's own testimony, =
that he=20
did not pay any remaining amounts due under the three-year lease =
after=20
abandoning the premises in March 2003 and (2) that Patton owed a =
total of=20
$58,996.00 as "the basic monthly rental amount of $2107 per month =
for 28=20
months," with one month's rental credited for Patton's security =
deposit. As the=20
trial court emphasized in response to similar contentions, =
however,=20
Patton's trial testimony shows that he disputed the amounts that =
Randall's=20
claimed he owed, that he "did not know" the CAM charges, and that =
he was=20
not certain whether his claimed arrearages had been corrected. =
Referring=20
specifically to Randall's' third exhibit, a purported computerized =
printout of rental amounts due, the trial court observed that =
Randall's=20
did not substantiate the authenticity of the document at trial. =
Having=20
neither authenticated the document nor explained its contents, =
Randall's=20
never established Patton's indebtedness. In addition, the trial =
court=20
reiterated the failure of proof resulting from Randall's' failure =
to=20
provide a copy of the master lease that had been incorporated by =
reference=20
into the sublease and with which Patton was required to comply.=20
Without=20
evidence of the master lease or its contents, the trial court =
could not=20
determine what effect, if any, that lease had on Randall's' claims =
or=20
Patton's defenses. Specifically regarding the issue of default, =
though the=20
sublease listed eight instances that constituted default, =
including=20
abandonment and failure to pay rent, the sublease further =
specified that=20
any event of default listed in the master lease would constitute a =
default. Without the master lease in evidence, the trial court had =
no=20
means of determining the extent of any default, in particular a =
default=20
relating to indebtedness. For the same reason, the trial court was =
not=20
able to determine Patton's compliance with the terms of the master =
lease,=20
to which he was bound by the express terms of the sublease. =
Having=20
failed to provide competent evidence of Patton's indebtedness to=20
controvert Patton's assertions that he could not verify what he =
owed,=20
Randall's failed to carry its evidentiary burden of establishing a =
crucial=20
element of its case. We=20
therefore hold that the evidence is legally sufficient to support =
the=20
trial court's failure to find in favor of Randall's on its claim =
that=20
Patton anticipatorily breached its contract with Randall's. =
We overrule=20
Randall's' first issue. B.=20
Attorney's Fees In its=20
second issue, Randall's contends that it conclusively established =
its=20
right to attorney's fees and the amount of those fees. A party =
whose=20
claims are premised on an oral or written contract may recover =
reasonable=20
attorney's fees and costs. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. =A7 38.001(8) (Vernon 2008). Under well-settled law, a party =
must=20
prevail to recover attorney's fees pursuant to chapter 38. =
Green=20
Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); =
Ryan v.=20
Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.--Houston [1st =
Dist.] 2001,=20
pet. denied). Randall's did not prevail and therefore may not =
recover=20
attorney's fees. We overrule=20
Randall's' second issue.
Randall's'=20
third issue challenges several of the trial court's findings of=20
fact. A.=20
Randall's' Duty to Mitigate Consistent=20
with its statutorily imposed duty to mitigate and its pleadings =
seeking=20
recovery for anticipatory breach, Randall's also had to prove the =
present=20
value of the future rentals under the unexpired term of the lease, =
reduced=20
by either the reasonable value of re-renting the leased premises =
or the=20
rent paid by any new tenant. Austin Hill Country Realty, =
948=20
S.W.2d at 300; Marshall v. Telecomm. Specialists, Inc., =
806=20
S.W.2d 904, 907 (Tex. App.--Houston [1st Dist.] 1991, no writ); =
see=20
also Crabtree v. Southmark Commercial Mgmt., 704 S.W.2d 478, =
480=20
(Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) =
(limiting=20
damages sought by landlord who treated tenant's conduct as =
anticipatory=20
breach to recovery of present value of rentals that accrue, =
reduced by=20
reasonable cash-market value of unexpired term of lease); =
Speedee=20
Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex. =
App.--Amarillo 1983,=20
no writ) (holding that landlord who treated tenant's conduct as=20
anticipatory breach could recover contractual rental reduced by =
amount=20
received from new tenant). Randall's'=20
pleadings sought recovery of consequential damages for expenses =
incurred=20
in re-leasing, renovating and altering the premises for the new =
tenant. Yet,=20
Randall's presented no evidence of either the rent that a new =
tenant was=20
paying or the reasonable value of the re-leasing of the premises=20
contemplated by its pleadings, and nothing in the record provides =
a basis=20
for determining either of those values. Even if we were to assume =
that the=20
$2,107 per month rental stated in the sublease represents the =
present=20
value of the 28 months of future rentals remaining under the =
lease,=20
Randall's failed to satisfy its burden to demonstrate either the =
rent that=20
a new tenant was paying or the reasonable value of the re-leasing, =
in=20
keeping with its duty to mitigate. Tex. Prop. Code Ann. =A7 =
91.006;=20
Austin Hill Country Realty, 948 S.W.2d at 300. =
B.=20
Randall's' Failure of Proof In=20
addition, Randall's challenges the fourth finding of fact, which =
recites=20
that Randall's "did not call any witnesses to present testimony in =
support=20
of its claims," and the eighth finding, which also relates to =
Randall's'=20
failure of proof. Regarding=20
the fourth finding, Randall's protests that it presented Patton as =
a=20
witness and that it was entitled to prove its case through him. We =
agree.=20
But Randall's did not prove its case, as held above. The record =
reflects=20
that the trial court signed the findings of fact before conducting =
the=20
hearing on Randall's' postjudgment motions. The reporter's record =
of the=20
hearing on those motions contains the following colloquy between =
counsel=20
for Randall's and the trial court: COUNSEL:=20
[W]hen I received the Judgment and . . . the Findings of Fact and=20
Conclusions of Law, the only thing that I can conclude, Judge . . =
. is=20
that the Court expressed during the trial that it had some concern =
about=20
the fact that this was a sublease and there was no initial lease =
that was=20
submitted into evidence. We took a=20
break, and we talked about that. I chose to go =
forward. THE COURT:=20
With no witnesses, either, except you called the defendant, =
presented no=20
witnesses. As the=20
ensuing discussion between counsel and the trial court further =
reflects,=20
the trial court recounted in detail the failure of proof that =
arose from=20
(1) lack of the master lease and (2) lack of evidentiary =
authentication=20
for the exhibits on which Randall's relied. The record thus =
reflects that=20
the trial court acknowledged Randall's' having called Patton as a =
witness,=20
but that Randall's "did not call any witnesses to present =
testimony in=20
support of its claims," as the fourth finding of fact recites and, =
therefore, failed to present evidence to support its claim of =
anticipatory=20
breach. The fourth finding of fact thus conforms to the record and =
was not=20
error. The eighth=20
finding of fact states that Randall's "did not offer any =
testimony" to=20
support its compilation of the amounts it claimed were due. =
Randall's=20
argues that its trial exhibits were admitted without objection and =
that=20
they were properly authenticated by a business-records affidavit =
filed=20
with Randall's' amended petition. Though Randall's purports to =
challenge=20
the fact finding, its argument raises an implicit attack on an =
evidentiary=20
ruling, as explained below. The trial=20
court's finding refers to the lack of live testimony. As =
the=20
court commented during the postjudgment hearing, ". . . [T]he only =
live=20
testimony that [Randall's] had was [that Patton] didn't know how =
many=20
payments he had made." Commenting further regarding the exhibits =
that=20
Randall's offered, the trial court acknowledged having "reviewed =
them,"=20
but reiterated that Randall's nonetheless "did not have the =
original lease=20
that the sublease referred to repeatedly . . . to explain terms of =
that=20
sublease. . . . And I warned you at the time [that] there is no=20
explanation . . . ." Regarding Randall's' compilation of =
arrearages,=20
the trial court commented, You didn't=20
have anybody testify that he owed this amount. You introduced, =
again=20
without any supporting testimony, a piece of paper that had some =
amounts=20
on it, but there was no explanation. Again[,] the defendant hadn't =
prepared it, so there was no explanation for that sheet,=20
sir. Though=20
Randall's asked during the same hearing that the evidence be =
reopened to=20
consider its business-record affidavit and the master lease, the =
trial=20
court denied that request, stating regarding the master =
lease, Sir, I=20
asked you for that at the beginning and gave you a break to give =
me that=20
at the beginning . . . . And you said that you chose to go on =
without the=20
initial lease, . . . [I am] not going to grant that at this late =
date. . .=20
. [I]t does present some type of harm . . . [to] add evidence at =
the end=20
of the trial. In=20
actuality, therefore, Randall's' challenge is to the trial court's =
refusal=20
to reopen the evidence after trial. Rule 270 of the Rules of Civil =
Procedure permits reopening the evidence when this clearly appears =
necessary to the administration of justice. See Tex. R. =
Civ. P.=20
270 (authorizing trial courts to "permit additional evidence" =
except after=20
jury has returned its verdict in jury trial); Saunders v. =
Lee,=20
180 S.W.3d 742, 745-46 (Tex. App.--Waco, 2005, no pet.). We review =
the=20
trial court's ruling for abuse of discretion. Id. =
Reviewing the=20
record has persuaded us that, in addition to seeking to remedy its =
evidentiary shortcomings, Randall's' arguments attempted to alter =
its=20
pleadings and trial strategy, to Patton's prejudice. As in its=20
postjudgment motions, Randall's no longer seeks compensatory =
damages and=20
argues that, "Regardless of the CAM, taxes and insurance =
provisions of the=20
contract, paragraph 3.1 of the Sublease unequivocally stated that =
Patton=20
agreed to pay $2,107.00 per month from July 1, 2002 through June =
30,=20
2005." Randall's has thus abandoned its request for allegedly =
unpaid CAM.=20
In contrast to its pleadings, Randall's now seeks to recover only =
the=20
minimum monthly rental due for the 28 months remaining in the =
lease term=20
and asks that we render judgment in its favor for $58,996.00, on =
the=20
ground that the trial court ignored undisputed facts and =
arbitrarily=20
denied any recovery. As held=20
above, Randall's sued Patton on the ground that he anticipatorily =
breached=20
the sublease by abandoning the premises. A landlord whose tenant =
breaches=20
the lease by abandoning the premises has four possible options. =
Austin=20
Hill Country Realty, Inc., 948 S.W.2d at 300. Analysis of =
these=20
options demonstrates that they are neither alternative nor =
cumulative.=20
We have=20
held that Randall's failed to prove its case under the =
anticipatory breach=20
options stated in its pleadings. Under the two remaining options, =
Randall=20
could (1) maintain the lease and sue for rent as it became due, or =
(2)=20
declare the lease forfeited and relieve Patton of any future =
liability.=20
See id. Randall's' litigation strategy forecloses either =
of the=20
two remaining options. The first remaining option does not apply =
because=20
Randall's seeks to recover all of the remaining rent at once, =
rather than=20
as payments accrue, and has demonstrated an intent to lease the =
premises=20
to a new tenant, with the resulting duty to mitigate its damages =
that we=20
have addressed. See id. The second remaining option is =
likewise=20
impermissible, given this litigation. Randall's' attempt to alter =
its=20
trial theories and strategy comes too late not to prejudice =
Patton.=20
See generally, Tex. R. Civ. P. 63 (governing amended =
pleadings at=20
trial); Chapin & Chapin, Inc. v. Tex. Sand & Gravel =
Co.,=20
844 S.W.2d 664, 665 (Tex. 1992) (citing Hardin v. Hardin, =
597=20
S.W.2d 347, 350-51 (Tex. 1980) (addressing prejudicial, =
substantive=20
amendments that change nature of trial)). We hold that the trial court =
properly=20
restricted Randall's to its pleadings, theories, and trial =
strategy and=20
that the record reflects that the trial court's ninth finding of =
fact is=20
correct. In the final portion of its third issue, Randall's argues =
that=20
the trial court's second, fifth, and sixth conclusions of law are=20
incorrect because the court's findings of fact are incorrect. =
Having=20
rejected the latter contention, we hold that the challenged =
conclusions=20
are not erroneous. We overrule Randall's' third=20
issue.
In its=20
fourth issue, Randall's contends that the trial court committed =
reversible=20
error that warrants either rendition in favor of Randall's or =
remand for a=20
new trial because the judgment grants relief to Brian Weldon, who =
was=20
initially a plaintiff with Patton and the Linux Professional =
Group, but=20
whom the trial court ordered severed after Weldon filed a petition =
in=20
bankruptcy. We disagree. The=20
judgment recites that the trial court found in favor of =
"Defendants, Bill=20
Patton, Bryan H. Weldon and Linux Professional Group" on =
Randall's' claim=20
for breach of contract. Yet, the trial court's findings of fact =
and=20
conclusions of law refer only to Patton. During the hearing on =
Randall's'=20
postjudgment motions, Randall's' counsel alerted the trial court =
that its=20
final judgment included Weldon, despite his having been severed. =
The trial=20
court confirmed that the judgment was indeed incorrect and offered =
to=20
"conform the judgment to what my findings are. I don't have a =
problem with=20
doing that." Before adjourning the proceedings, the trial court =
restated=20
its offer to "conform that judgment." Yet the record before us =
does not=20
show that a request was ever made. As the=20
trial court recognized in offering to conform the judgment to the =
court's=20
findings, which do not refer at all to Weldon, "findings of fact =
made=20
pursuant to Rules 297 and 298," as here, "control for appellate =
purposes"=20
over findings recited in a judgment. See Tex. R. Civ. P. =
299a;=20
Guridi v. Waller, 98 S.W.3d 315, 317 (Tex. App.--Houston =
[1st=20
Dist.] 2003, no pet.). "[T]he separately-filed findings of fact," =
which do=20
not refer at all to Weldon, "control," see Guridi, 98 =
S.W.3d at=20
317, and also conform to the trial court's pronouncements in =
response to=20
Randall's' trial-court complaint. Accordingly, there is no basis =
for=20
reversal, whether by rendition or remand for trial. Because this =
Court may=20
now do what the trial court =
was never=20
asked to do, we reform the judgment below by deleting any =
reference to the=20
claims of the severed party Weldon. We sustain Randall's' fourth =
issue to the=20
extent that we reform the judgment of the trial court, but =
overrule=20
Randall's' requested relief. We overrule Randall's' issues =
except that=20
we reform the judgment by deleting any reference to the claims of =
the=20
severed party Weldon. We affirm the judgment of the trial court in =
all=20
other respects. Sherry Radack Chief Justice Panel consists of Chief Justice =
Radack=20
and Justices Keyes and Higley.=20
We =
will refer=20
to appellee as "Patton." Patton's full name is Frederick William =
Patton=20
III. Patton d/b/a Linux Professional Group is the sole appellee in =
this=20
cause. Weldon was initially a named defendant, but the trial court =
severed=20
Randall's' claims against Weldon into a separate cause after he =
filed a=20
voluntary Chapter 7 bankruptcy petition.=20
3. During the hearing, 4. The minority rule derives from a view of =
the tenant=20
as the "owner" entitled to possess the premises under the full =
term of the=20
lease and thus liable for the remainder of the lease term, despite =
abandoning the premises. See 5. Based on these contentions, Randall's has =
apparently abandoned some of the damages initially specified in =
its=20
pleadings. We address the implications of this posture in our =
discussion=20
of Randall's' third issue.=20
6. We address=20
the argument because Randall's' legal-sufficiency challenge fairly =
encompasses it, in that Randall's raises as a legal principle that =
it=20
contends would vitiate the trial court's ruling in favor of =
Patton.=20
See City of Keller v. Wilson, 168 S.W.3d 802, =
810 &=20
n.16 (Tex. 2005) (describing second instance in legal =
sufficiency=20
challenge must be sustained as situation presented when rules of =
law or=20
evidence preclude according weight to only evidence offered to =
prove vital=20
fact). 7. It is not clear from the record whether =
Randall's=20
actually rented the premises to another tenant or merely =
contemplated=20
renting them =
again.