Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 319th District Court of Nueces County, Texas.
Justices Rodriguez, Contreras, and Longoria Opinion by
V. RODRIGUEZ JUSTICE.
Cash, Ltd. filed this suit alleging that its lease at the
Parkdale Shopping Center was breached by two groups of
(1) the "Legacy Landlords, " a group of the four
LLCs that once owned the shopping center; and
(2) the "Current Landlords, " the two entities that
currently own the shopping center.
awarded First Cash two forms of damages on its claim for
breach of lease against the Legacy Landlords: damages for
building costs and for the lost value of the breached lease.
On cross-appeal, the Legacy Landlords assert that there is
insufficient evidence to support either award. We affirm the
award of damages for building costs, but we reverse and
remand the award for the lost value of the breached lease.
jury also awarded First Cash attorney's fees, but the
trial court granted judgment notwithstanding the verdict
("JNOV") denying the award. On appeal, First Cash
challenges the JNOV, asserting that the trial court
misconstrued the attorney's fees statute. We affirm the
entry of JNOV.
September 2001, First Cash entered into a lease for space in
the Parkdale Shopping Center in Corpus Christi. The lease had
one ten-year term, with two additional five-year options
that, if exercised, would come to term in September 2021. The
lease provided that in the event of casualty and significant
loss of the premises' value, the Landlords could
terminate the lease.
2007, the owners of the Legacy Landlords entered into talks
with Walmart to explore a redevelopment plan, wherein several
buildings in the Parkdale Shopping Center would be demolished
and a Walmart would be built in their place. The Legacy
Landlords' owners told First Cash's management of its
22, 2009, a fire occurred at the shopping center, damaging a
portion of the main building. The fire did not damage the
separate building containing First Cash's store. Three
weeks after the fire, the Legacy Landlords notified First
Cash that it was terminating First Cash's lease as a
result of the alleged fire damage. First Cash vacated the
premises in December 2009 and moved into a new location less
than a mile away. First Cash demanded compensation from the
Landlords for the value of its breached lease and for the
cost to make improvements to its new location, which were
allegedly necessary to bring the location into useable
condition. First Cash filed this suit in the fall of 2010.
the Landlords completed a partial sale of the Parkdale
Shopping Center to Walmart. Ultimately, most of the original
retail space (including First Cash's former building) was
demolished, and a large part of the land was sold to Walmart.
Roughly 40, 000 square feet of new, higher-quality retail
space was constructed on the tract that remained in the
Landlords' possession. At some point, the Legacy
Landlords transferred all of its remaining interest in
Parkdale to the Current Landlords. Both the Legacy and
Current Landlords have the same owners.
case went to trial in June of 2015. The trial court granted a
directed verdict in favor of the Current Landlords. This
directed verdict is the subject of First Cash's second
issue on appeal.
found that the Legacy Landlords breached the lease. The
Legacy Landlords do not challenge this finding on appeal.
jury awarded First Cash $182, 400 as damages to compensate
for the value of its breached lease under the "rent
differential" measure of damages. The jury further
awarded First Cash $130, 000 as the cost to move its pawn
shop into and build out a new location. These two awards are
the subject of the Legacy Landlords' cross-appeal.
jury also awarded First Cash $800, 000 in attorney's fees
through trial and $65, 000 for various stages of appeal. The
Legacy Landlords submitted a post-verdict motion opposing the
award of attorney's fees. They asserted that because the
Legacy Landlords were LLCs, they did not qualify as either an
"individual or corporation" under the language of
the attorney's fees statute. See Tex. Civ. Prac.
& Rem. Code Ann. § 38.001(8) (West, Westlaw through
2017 1st C.S.). The trial court agreed and granted JNOV to
exclude the attorney's fees.
first issue on appeal, First Cash asserts that the trial
court erred in granting JNOV because it misinterpreted the
attorney's fees statute, section 38.001. See id.
All Texas and federal courts which have interpreted section
38.001 have held that LLCs cannot be held liable for
attorney's fees under the plain meaning of the terms
"individual or corporation." See Alta Mesa
Holdings, LP v. Ives, 488 S.W.3d 438, 455 (Tex. App.-
Houston [14th Dist.] 2016, pet. denied). Here, First
Cash repeats many of the arguments that Texas courts have
rejected based on sound and persuasive reasoning.
See, e.g., id. at 452-55;
Choice! Power, LP v. Feeley, 501 S.W.3d 199, 211-14
(Tex. App.- Houston [1st Dist.] 2016, no pet.); Fleming
& Assocs., LLP v. Barton, 425 S.W.3d 560, 574-76
(Tex. App.-Houston [14th Dist.] 2014, pet. denied). We reject
these arguments for the reasons stated in Alta Mesa.
See 488 S.W.3d at 452-55.
First Cash offers certain arguments that have not been
previously addressed by Texas courts. According to First
Cash, the attorney's fees statute was not meant to be
interpreted according to the plain meaning of the separate
terms "individual" and "corporation."
Rather, the proper approach is to assess the phrase
"individual or corporation" as a whole. First Cash
asserts that this unified phrase has acquired a particular
meaning apart from the separate words of which it is made.
According to First Cash, this particular meaning is shown by
the unique legislative history of the attorney's fees
statute, as well as by similar uses of this phrase in related
statutes. First Cash asserts that both of these
aspects-legislative history and comparable usage-show the
Legislature intended the phrase "individual or
corporation" to refer to virtually any legal entity,
including LLCs such as the Legacy Landlords.
address this argument, we briefly summarize the history of
the attorney's fees statute as a recodification from an
earlier statute, as well as comparable uses of the phrase
"individual or corporation" in other statutes.
Standard of Review
construction is a question of law for the court to decide.
Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314,
318 (Tex. 2002). We review legal questions de novo.
Id. The trial court may grant a JNOV if there is no
evidence to support one or more of the jury findings on
issues necessary to liability or if a legal principle
precludes recovery. Daftary v. Prestonwood Mkt. Square,
Ltd., 404 S.W.3d 807, 814 (Tex. App.- Dallas 2013, pet.
denied) (applying this rule in breach-of-commercial lease
case). A no-evidence point will be sustained when (1) there
is a complete absence of evidence of a vital fact, (2) the
court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact,
(3) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of the vital fact. Volkswagen of
Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).
Statutory Interpretation and Recodification
fundamental goal when reading statutes is to give effect to
the Legislature's intent. Cadena Comercial USA Corp.
v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318,
325 (Tex. 2017). We rely on the plain meaning of a
statute's words as expressing legislative intent unless a
different meaning is supplied, is apparent from the context,
or the plain meaning of the words leads to absurd results.
Id. Words and phrases that have acquired a technical
or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly. Colorado Cty.
v. Staff, 510 S.W.3d 435, 452 (Tex. 2017). We presume
the Legislature "chooses a statute's language with
care, including each word chosen for a purpose, while
purposefully omitting words not chosen."
Cadena, 518 S.W.3d at 325-26. We may not interpret a
statute in a way that renders any part of it meaningless.
Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 617
construing the meaning of a statute, courts may also consider
other factors such as the circumstances under which the
statute was enacted and the statute's legislative
history. Tex. Gov't Code Ann. § 311.023(2)-(3)
(West, Westlaw through 2017 1st C.S.). If possible, courts
are to construe statutes so as to harmonize with other
relevant laws. In re United Servs. Auto. Ass'n,
307 S.W.3d 299, 311 (Tex. 2010) (orig. proceeding).
more than thirty years, our statutes have undergone a
continuing process of codification and in some instances
recodification." Fleming Foods of Tex., Inc. v.
Rylander, 6 S.W.3d 278, 283 (Tex. 1999). The Legislature
charged the Texas Legislative Council with the task of
revising statutes to "clarify and simplify" them,
but with the restriction that the Legislative Council
"may not alter the sense, meaning, or effect of [a]
statute." Id. That is, recodifications must be
nonsubstantive. See id. at 284.
when the specific provisions of a recodification are
"direct, unambiguous, and cannot be reconciled with
prior law, " the recodification must be given effect
according to its plain terms, and the prior, repealed statute
will not control. Id. at 286. The Legislature's
general statement that a recodification is nonsubstantive
"cannot revive ...