CHCA WOMAN'S HOSPITAL, L.P. D/B/A WOMAN'S HOSPITAL OF TEXAS, Appellant
NEMA UWAYDAH, M.D., Appellee
Appeal from County Civil Court at Law No. 1 Harris County,
Texas, Trial Court Case No. 1086687
consists of Justices Lloyd, Kelly, and Hightower.
Russell Lloyd Justice.
CHCA Woman's Hospital, L.P. d/b/a Woman's Hospital of
Texas (the Hospital) is appealing the trial court's
judgment in favor of appellee Dr. Nema Uwaydah (Dr. Uwaydah)
rendered after a bench trial. In three issues, the Hospital
argues that: (1) the trial court erred by rendering a
take-nothing judgment against it on its breach of contract
claim against Dr. Uwaydah because the Hospital established
that it was entitled to judgment on its claim as a matter of
law, and there is legally and factually insufficient evidence
supporting the trial court's findings; (2) the trial
court erred by rendering judgment in Dr. Uwaydah's favor
on her claim for wrongful eviction, and there is legally and
factually insufficient evidence supporting the trial
court's findings; (3) the trial court erred by rendering
judgment in Dr. Uwaydah's favor on her negligence claim,
and there is legally and factually insufficient evidence
supporting the trial court's findings; and (4) the trial
court erred by awarding Dr. Uwaydah her attorney's fees
based on her wrongful eviction claim.
reverse the take-nothing judgment rendered against the
Hospital on its breach of contract claim and render judgment
in the Hospital's favor in the amount of $34, 109.12. We
remand the issue of the Hospital's attorney's fees
for new trial.
reverse the trial court's judgment on Dr. Uwaydah's
wrongful eviction and negligence claims and render a
take-nothing judgment against Dr. Uwaydah on both claims.
Because Dr. Uwaydah's award of attorney's fees is
predicated on her wrongful eviction claim, we reverse that
award as well and render a take nothing judgment against Dr.
Uwaydah on her claim for such fees.
Breach of Contract and Wrongful Eviction
Uwaydah is a family practitioner who opened her private
practice in one of the medical office buildings located on
the campus of Texas Woman's Hospital in 2002. She alleges
that she initially leased her office space from the Hospital.
One and a half years later, Dr. Uwaydah moved her practice to
the second floor of a different building on the same campus
(the Premises). On August 6, 2004, Dr. Uwaydah executed a
lease, as amended, by and between MOB 103 of Texas, L.P., as
landlord, and Dr. Uwaydah, as tenant, for the Premises.
According to Dr. Uwaydah, she believed that both buildings
were owned by the Hospital's parent company, HCA. She
executed several subsequent leases with MOB 103, as landlord.
about May 15, 2014, Dr. Uwaydah's daughter became
seriously ill and required extensive hospitalization and
around-the-clock care. Dr. Uwaydah discontinued her medical
practice for three months beginning in May 2014 and was in
and out of her office for the remainder of the year. She was
also out of the office for several extended periods in 2015
and 2016. Dr. Uwaydah testified that although she was late
paying her rent several times, her landlord, MOB 103,
accepted the late payments, waived any late fees, and did not
about February 23, 2015, Dr. Uwaydah executed a First
Amendment to Base Year Medical Office Building Lease, as
tenant, with MOB 103, as landlord (the Lease), for the
Premises. The Lease was for a term of three years, beginning
on April 1, 2015 and ending on March 31, 2018.
January 15, 2016, the Hospital purchased the building at 7580
Fannin from MOB 103.
103's request, Dr. Uwaydah executed a "Tenant
Estoppel" letter on April 21, 2016 ratifying the
Lease. Dr. Uwaydah attested to the following
facts in her letter:
. . . The Lease is in full force and effect and is the valid
and binding obligation of Tenant.
As of the date hereof, to the best of Tenant's Knowledge,
Landlord has performed all of its obligations under the Lease
and neither Tenant nor, to the best of Tenant's
knowledge, Landlord, is currently in default under the Lease
and, to the best of Tenant's knowledge, no event has
occurred which with the giving of notice or passage of time
would constitute such a default.
The Lease has not been modified, altered or amended (in
writing or orally), except as provided above.
As of the date hereof, there are no off-sets, defenses,
counterclaims or credits against rentals, nor have rentals
been prepaid for more than one (1) month in advance.
As of the date hereof, all base rental and other payments due
under the Lease are current, with the amount of base rental
and other payments paid by Tenant, for operating expenses,
being $4, 887.23. There are no free rental, rebates or other
concessions due to Tenant under the Lease.
April 29, 2016, MOB 103 assigned all the leases in the
building, including Dr. Uwaydah's lease, to the Hospital.
On that day, Dr. Uwaydah's account had a positive balance
of $325.81 and the $4, 500.00 security deposit she had paid
to MOB 103 was transferred to the Hospital. The same
management company that represented MOB 103 continued to
manage the Premises for the Hospital.
September 28, 2016, the Hospital sent Dr. Uwaydah a Notice to
Vacate informing her that she had defaulted on the Lease by
failing to pay rent for May thru September 2016. The Hospital
terminated her right to possession under the Lease but not
her liability to pay rent accruing under the Lease, including
her liability for past due rent. She was given three days to
vacate the Premises.
Uwaydah did not vacate. The Hospital filed a forcible
detainer action in the justice court. On August 25, 2016, the
justice court determined that the Hospital had a superior
right to possession of the Premises, entered judgment in the
Hospital's favor, and ordered a writ of possession to
issue on November 1, 2016.
Uwaydah attempted to negotiate with the Hospital for an
extension of time to relocate her practice. After the parties
were unable to reach an agreement regarding an extension, Dr.
Uwaydah packed up her office and moved her belongings into a
storage unit. Dr. Uwaydah testified that she began moving out
of her office on October 31, 2016, and that she was
"done, I think, on the 1st" of November. The
Hospital's property manager confirmed that Dr. Uwaydah
vacated the Premises on November 1, 2016. Dr. Uwaydah
testified that she had difficulty finding another suitable
location and she was not able to resume her medical practice
until the end of April 2017.
December 2016, the Hospital sued Dr. Uwaydah for breach of
the Lease. Dr. Uwaydah filed a general denial and raised
several affirmative defenses including estoppel and waiver.
Dr. Uwaydah later added counterclaims against the Hospital
for "wrongful eviction" and requested
attorney's fees. She also alleged that she lost patients
and income because the Hospital's switchboard personnel
falsely and negligently told some of her patients who were
trying to contact her that she was no longer practicing
medicine in the Premises.
the terms of the Lease, Dr. Uwaydah was required to pay the
Hospital $4, 719.06 a month from April 2016 to March 2017
(Base Rent). Base Rent was due on the first day of each
calendar month. The Lease further provides that Dr. Uwaydah
was required to pay "additional rent" each month.
The Additional Rent required by the Lease includes Dr.
Uwaydah's proportionate share of "excess operating
costs," which includes costs for maintaining the office
building's common areas. "Base Rent" and
"Additional Rent" are collectively referred to as
"Rent" for purposes of the Lease. Dr. Uwaydah
judicially admitted that she was obligated to pay $4, 887.23
in Rent every month, as of April 2016.
Lease also allows the Hospital to collect late fees from Dr.
Uwaydah if she does not pay her Base Rent or Additional Rent
within ten days of the due date (the Late Payment Date).
Specifically, section 20.3 states that if Dr. Uwaydah does
not pay her Base Rent or Additional Rent within ten days of
the due date, Dr. Uwaydah "shall, upon demand, pay
Landlord a late charge . . . ." The Hospital is also
entitled to collect additional late charges if Dr. Uwaydah
did not pay her Base Rent or Additional Rent within thirty
days after the Late Payment Date. Dr. Uwaydah's failure
to pay Rent or to make any other payment required under the
Lease within ten days after the payment is due constitutes a
material default and breach of the Lease.
13, which identifies the remedies available to the Hospital
in the event Dr. Uwaydah defaulted on the Lease, states that
the Hospital may continue the Lease in full force and effect
and continue to collect Rent from Dr. Uwaydah until the
Hospital can lease the property to a third party. Under such
circumstances, the Lease will only be terminated if the
Hospital notifies Dr. Uwaydah in writing that the Hospital
has elected to terminate the Lease. Section 13.1(b) also
allows the Hospital to terminate the Lease and reacquire
possession of the Premises if Dr. Uwaydah defaults. Under
such circumstances, the Hospital "shall have the right
to collect an amount equal to all expenses incurred by
Landlord in recovering possession of the Premises, including
but not limited to reasonable attorneys' fees and costs;
all reasonable costs and charges for the care of the Premises
while vacant; all renovation costs incurred in connection
with the preparation of the Premises for a new tenant; all
past due Rent which is unpaid, plus interest thereon at the
Interest Rate (as defined in Section 20.9); and the amount of
Rent that would have been due for the remainder of the Term
if the Lease had continued until the expiration of the
Term." "All rights, options and remedies of [the
Hospital] provided herein or elsewhere by law or in equity
shall be deemed cumulative and not exclusive of one
Lease also contains a nonwaiver clause (the Nonwaiver
Clause). Section 20.6 provides that:
[N]o waiver by Landlord or Tenant of any breach of any term,
agreement, covenant, or condition of this Lease shall be
deemed to be a waiver of any other term, agreement, covenant,
or condition hereof or of any subsequent breach by Landlord
or Tenant for the same or any other term, agreement,
covenant, or condition. . . . The subsequent acceptance of
Rent shall not be deemed a waiver of any preceding breach by
Tenant of any agreement, covenant or obligation of Tenant or
any other term or condition of this Lease.
addition to the nonwaiver clause, the Lease further states
that, "No provision of this Lease may be amended or
added to except by an agreement in writing signed by the