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Sky Interests Corp. v. Moisdon

Court of Appeals of Texas, Fifth District, Dallas

July 30, 2019


          On Appeal from the 382nd Judicial District Court Rockwall County, Texas, Trial Court Cause No. 1-16-0782

          Before Justices Schenck, Osborne, and Reichek



         In this appeal following a partial summary judgment and jury trial, Sky Interests Corp. asserts the trial court erred in (1) failing to award prejudgment interest on the amount awarded to it in the partial summary judgment, (2) misapplying Texas Property Code Section 93.002, and (3) refusing to submit a proposed jury question on abandonment. Sky Interests further contends the evidence is insufficient to support the jury's award of damages for conversion. Elle Moisdon brings one cross-issue challenging the summary judgment granted in favor of Sky Interests on its claim for breach of contract. Moisdon also asserts a conditional cross-issue addressing pre-judgment interest on her conversion award. For the reasons set forth below, we affirm the trial court's judgment.


         On May 14, 2013, Moisdon signed an agreement with Sky Interests to lease a property in Rockwall, Texas for a period of five years. The property was to be used as a restaurant. The lease agreement stated that any rent payment made after the tenth day of the month would be assessed a 10% late payment fee. The lease further stated that if Moisdon defaulted in payment of the rent, or any part thereof, Sky Interests could terminate the lease and "repossess and enjoy the leased property and any buildings and improvements situated thereon without such a re-entry and repossession working a forfeiture of the rents to be paid." Moisdon agreed to "indemnify and save harmless [Sky Interests] from any loss arising from such default, termination, and/or re-entry." Moisdon also agreed that Sky Interests would not be liable for any losses suffered to her property except to the extent such losses were "occasioned by the gross negligence or intentional acts of [Sky Interests]."

         Moisdon officially opened her restaurant in January 2014. According to Moisdon, construction occurring in front of the premises made it difficult for her to attract business. In August 2014, Moisdon did not tender a check for her rent until the 11th day of the month, one day after the late fees accrued. The check was later returned for insufficient funds.

         On August 21, Moisdon arrived at the restaurant to discover she had been locked out. The notice posted to the door stated that if Moisdon paid the August rent, late fees, and a lock-out fee, she could obtain the new keys to the premises from the property manager, Teresa Dickerson. Moisdon went to Sky Interests's offices, which were in the same building as the restaurant, to speak to Dickerson. Moisdon stated Dickerson walked her into the restaurant and allowed her to remove her personal laptop, a reservation book, and customer lists. Moisdon testified she later called Dickerson and asked how she could get the remainder of her belongings and was told the only way she could re-enter the premises was to pay the full amount owed including the fees.

          On September 9, Moisdon left a letter outside the door to Sky Interests's offices demanding the return of her personal property including all equipment, kitchen items, furniture, decorative items, and inventory. When she received no response, she hired an attorney who sent a letter to Sky Interests on September 11. This letter stated that one of Moisdon's primary concerns was the safekeeping of her equipment and inventory. The letter further stated that if Sky Interests or its agents began removing Moisdon's property from the premises, they would take action to protect her rights.

         Moisdon stated she called Sky Interests numerous times in September and October to resolve their issues. On October 14, Moisdon went to the restaurant and looked in the windows to make sure her things were still there. She stated she noticed items were missing, such as some of the wine from the wine rack.

         Four days later, Moisdon was informed by friends that her property at the restaurant was going to be sold. Moisdon went to the restaurant that night and saw a sign on the door that said "Blow Out Sale." The next day, she went to the police to tell them her things were being improperly sold. She left after being told it was a civil matter and there was nothing they could do.

         Moisdon then went to the restaurant and found the sale occurring. She went in the doorway and saw her property being sold by Sky Interests's employees. Moisdon said she approached one of the employees and asked him why they were selling her things instead of allowing her to pay the rent. She asserts the employee responded, "[W]e've done this before." The employee called the police after he saw Moisdon take some of the property and put it into her car. The police came and Moisdon was issued a criminal trespass warning.

         On October 28, Dickerson sent Moisdon a letter stating they were terminating her lease as of October 31, 2014. On the day the lease was supposed to be terminated, however, a new property manager, Monica Rico, sent Moisdon an email attaching a November rent invoice. Moisdon responded that Dickerson told her the lease was terminated and asked her if she was supposed to do anything further. Rico replied she believed Moisdon had done everything she was supposed to do and she would let her know if that was not correct.

         On November 20 and 21, Moisdon's attorney and Rico exchanged emails in which the attorney demanded Sky Interests turn over all Moisdon's personal property that had not been sold. Rico responded it was their position that Moisdon had already retrieved her personal belongings. Rico requested a list of what property Moisdon believed was still on the premises that belonged to her stating, "if we don't know what she is expecting to pick up there is no reason for her to be there and she will be turned away." Moisdon then sent Rico an email stating she had not had access to the restaurant since the lockout and she needed, among other things, her business paperwork for her taxes and work-related obligations. Moisdon sent her a list of items still on the premises including things such as letters from her deceased father, medical records, passports, and jewelry.

         On November 26, Moisdon emailed Rico asking when she could pick up her things. Rico responded that they couldn't "have these things sitting in our hallway for very long." She told Moisdon to pick up her things that day or the following Monday. Moisdon testified that, when she went to collect her belongings, they only gave her one box of papers. Although she said she could see more of her property still inside the restaurant, they would not let her have any of it. After going through the box, Moisdon emailed Rico again to say the box did not contain any of her papers or personal items from her desk. She stated the desk "has all my important documents and my customer receipts that I have to have for taxes and the only other place to retrieve that is on my computers that you also kept." Moisdon later learned that Sky Interests sold the remaining items left on the ...

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