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PM Holdings, LLC v. Song

Court of Appeals of Texas, Fourteenth District

February 28, 2017

PM HOLDINGS, LLC, ROBERT MIZE, AND DAVID PIPER, Appellants
v.
JONG SONG, Appellee

         On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1067143

          Panel consists of Justices Busby, Donovan, and Brown.

          MEMORANDUM OPINION

          Marc W. Brown Justice

         This is 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Due to 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.[1] Piper is the managing partner of PM Holdings.

         Song, 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 receive.

         A "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.

         Song, through counsel, mailed a "demand for payment - $5, 221.50 plus late fees" to the PM Parties on June 23, 2015.[2] 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 lease.

         A 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.

         Song 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.

         The PM 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.

         The PM Parties superseded the judgment by filing a $27, 729.31 cash deposit with the Harris County clerk. This appeal followed.

         II. ANALYSIS

         A. Standard of Review

         Where 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) (per curiam).

         When 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.).

         When 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 ...


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