Appeal from the County Civil Court at Law No. 3 Harris
County, Texas Trial Court Cause No. 1067143
consists of Justices Busby, Donovan, and Brown.
W. Brown Justice
a forcible detainer (eviction) action originally brought by
Jong Song in the justice court and tried de novo in the
county court. PM Holdings, LLC, Robert Mize, and David Piper
(the "PM Parties") now appeal the judgment of the
county court in favor of Song. After a bench trial, the
county court awarded Song possession of the property,
damages, attorney's fees, and costs. On appeal, the PM
Parties challenge the legal and factual sufficiency of the
evidence to support the county court's judgment. We
affirm in part as modified and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
the limited evidence introduced at trial, we utilize the
clerk's record to supplement the background facts when
those facts do not appear to be in dispute. Mize and Song
entered into a commercial lease related to real property at
2003 Union Street, Houston, Harris County, Texas. Mize's
monthly rent under the lease was $3, 750. The original term
of the lease was from December 1, 2008 to November 30, 2013.
The lease contained a commercial lease expense reimbursement
addendum requiring the tenant to pay its pro rata share
(100%) of ad valorem taxes on the property monthly. The lease
was renewed and Mize assigned the lease to Piper or PM
Holdings. Piper is the managing partner of PM
through counsel, sent a letter to Mize and Piper regarding a
"notice of increase[d] payment and demand for payment -
$26, 250.00 plus late fees" notifying them of default
under the lease on May 11, 2015. The letter stated that seven
months' rent was past due and late fees totaling $1,
312.50 were owed as a result. Further, the letter indicated
$17, 658 in ad valorem taxes on the property for the years
2013 and 2014 had just been paid by Song. The letter
increased rent by $1, 471.50 a month unless Song was
reimbursed in full for the ad valorem taxes. The letter
provided three days to become compliant under the lease.
Piper testified he requested an accounting which he did not
"notice of lease termination and notice to and [sic]
vacate" was sent by Song, through counsel, to Mize and
Piper on May 20, 2015. The letter indicated the account
remained in default and Song was terminating the lease. Three
days were allowed to vacate the premises. Subsequently, Song
filed a forcible detainer action in the justice court. While
that action was pending, Piper presented a $26, 250 check to
Song's counsel on June 23, 2015. Piper was under the
impression that the matter was resolved, but he was not
provided with a settlement agreement. The forcible detainer
action was dismissed after the check was tendered. Song
cashed the check.
through counsel, mailed a "demand for payment - $5,
221.50 plus late fees" to the PM Parties on June 23,
2015. The letter indicated the base monthly rent
of $5, 221.50 for June 2015 had not been paid. It also
indicated $261.07 in late fees was due as a result of the
unpaid rent. The letter stated failure to make payment of $5,
482.57 within three days would constitute default under the
second "notice of lease termination and notice to and
[sic] vacate" was sent to the PM Parties on June 27,
2015. The letter indicated the tenant was in default for
failure to pay the amount past due within the time specified
by the June 23, 2015 letter. The letter provided eleven days
to vacate the premises.
filed a second forcible detainer action in the justice court
against the PM Parties on July 9, 2015. Song sought
possession of the property, along with past due rent,
attorney's fees, costs, and interest. The justice court
signed a judgment of eviction in favor of Song on August 6,
2015. The justice court also awarded attorney's fees and
court costs to Song. The PM Parties appealed the justice
court's judgment to the county court.
Parties filed a general denial in the county court. After a
bench trial, the county court signed an order granting
eviction on October 19, 2015. The county court awarded Song
$25, 612 in damages, $6, 700 in attorney's fees, and
$836.53 in costs. The county court did not issue findings of
fact or conclusions of law.
Parties superseded the judgment by filing a $27, 729.31 cash
deposit with the Harris County clerk. This appeal followed.
Standard of Review
the trial court does not file findings of fact and
conclusions of law, we imply all findings necessary to the
court's judgment, if supported by the evidence. See
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002). We review the PM Parties' complaints
presuming all findings of fact and conclusions of law were
made in favor of Song. We will affirm the judgment if it can
be upheld on any legal theory supported by the evidence.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
the appellate record includes the reporter's and
clerk's records, an appellant may challenge implied
findings by contesting the legal and factual sufficiency of
the evidence in the record to support them. See BMC
Software Belg., 83 S.W.3d at 795. We apply the same
standards of review as those applied to the review of jury
findings or a trial court's findings of fact. RR
Maloan Investments, Inc. v. New HGE, Inc., 428 S.W.3d
355, 359 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
reviewing the legal sufficiency of the evidence, we consider
the evidence in the light most favorable to the challenged
finding, making every reasonable inference to support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005). We must credit favorable evidence if a reasonable
factfinder could and disregard contrary evidence unless a
reasonable factfinder could not. Id. at 827. We must