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Kemp v. Brenham

Court of Appeals of Texas, Fifth District, Dallas

January 14, 2020

JOSEPH KEMP AND KRR HH RETAIL, LLC, Appellants
v.
SUBRINA BRENHAM AND SUBRINA'S TAX SERVICES, Appellees

          On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-09551

          Before Chief Justice Burns, Justice Richter [1], and Justice Rosenberg [2]

          MEMORANDUM OPINION

          MARTIN RICHTER JUSTICE

         This appeal involves a commercial lease dispute. Following a bench trial, the county court entered judgment in favor of appellees Subrina Brenham and Subrina's Tax Services (collectively "Brenham") on their constructive eviction claim. In two issues, appellants Joseph Kemp and KRR HH Retail, LLC (collectively "Kemp") contend no evidence supports (1) the constructive eviction claim and (2) the damages award. Because we conclude no evidence supports at least one element of Brenham's constructive eviction claim and thus resolve the first issue in Kemp's favor, we reverse and render judgment that Brenham take nothing.

         FACTUAL AND PROCEDURAL BACKGROUND

         Kemp purchased certain commercial property (the "Property") in which Brenham was a month-to-month tenant.[3] Brenham refused to vacate the Property after the expiration of a 30-day notice of non-renewal, so Kemp sued for eviction and prevailed. Brenham appealed to the county court where judgment was again rendered in Kemp's favor. While her appeal was pending, Brenham alleged Kemp interfered with her right of possession in numerous ways, thereby constructively evicting her. The county court issued a writ of possession on July 10, 2015, and on or about July 14, Brenham vacated the Property.

         On August 8, 2016, Brenham sued Kemp for, among other things, constructive eviction. Following a bench trial and without issuing findings of fact or conclusions of law, the district court entered judgment in Brenham's favor and awarded $91, 694 in damages. Kemp appeals the district court's judgment.

         DISCUSSION

         Kemp's first issue challenges the legal sufficiency of the evidence supporting the constructive eviction claim. In two arguments, Kemp contends there is no evidence: (1) a valid landlord-tenant relationship existed at the time Brenham abandoned the Property, or (2) that Brenham abandoned the Property as a direct consequence and within a reasonable time of the triggering acts.

         Evidence is legally insufficient if the record reveals (a) the complete absence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). When reviewing the evidence for legal sufficiency, we consider the evidence in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. Id. at 807.

         To establish a claim for constructive eviction, a tenant must prove (1) the landlord intended the tenant no longer enjoy the premises, (2) the landlord's acts substantially interfered with the tenant's use and enjoyment of the premises, (3) the tenant was permanently deprived of use and enjoyment of the premises, and (4) the tenant abandoned the premises within a reasonable time. Metroplex Glass Ctr., Inc. v. Vantage Properties, Inc., 646 S.W.2d 263, 265 (Tex. Civ. App.- Dallas 1983, writ ref'd n.r.e.). A constructive eviction claim also necessarily requires a valid landlord-tenant relationship. Tex. Prop. Code § 93.001.

         A landlord or a tenant may terminate a month-to-month tenancy for any reason after giving one month's notice to the other party. Tex. Prop. Code § 91.001(a); Struve v. Park Place Apartments, 923 S.W.2d 50, 52 (Tex. App.-Tyler 1995, writ denied). If a tenant "'has been in lawful possession of the property and wrongfully remains as a holdover tenant after [its] interest has expired, '" the tenant becomes a tenant at sufferance. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013); (quoting Black's Law Dictionary 1605 (9th ed. 2009)). Because the tenant remains in possession without the landlord's consent, the tenant's possession is unlawful. Id. In considering Kemp's first argument that no valid landlord-tenant relationship existed at the time Brenham abandoned the Property, we also observe that a valid landlord-tenant relationship must exist at the time a constructive eviction claim arises. Daftary v. Prestonwood Mkt. Square, Ltd., 404 S.W.3d 807, 815 (Tex. App.-Dallas 2013, pet. denied) ("the time when the landlord-tenant relationship is critical is when the landlord acts in a way to interfere with the tenant's enjoyment of the premises.").

         Here, Brenham contends that while her appeal was pending in the county court, Kemp conducted activities that restricted and limited her ability to conduct business. Specifically, Brenham alleges Kemp placed dumpsters near her front doors, erected barricades in front of her entrances, removed her business signs, parked a big white truck in front of her businesses, posted a sign indicating the road to the Property was closed, constructed a chain link fence around the Property, and started demolishing the Property (the "triggering acts"). Kemp argues these triggering acts could not support Brenham's constructive eviction claim because, at the time they occurred, no valid landlord-tenant relationship existed.

         In response, Brenham contends she was a holdover tenant and relies on Daftary for the proposition that holdover tenants can pursue constructive eviction claims. In Daftary, the landlord refused to address the holdover tenant's complaints, so it terminated the lease. Id. The tenant sued for constructive eviction, but the landlord argued that a valid landlord-tenant relationship no longer existed. Id. at 815. This Court rejected that argument, explaining that a holdover tenant is not foreclosed from pursuing a constructive eviction claim where the landlord treated the relationship as if the lease still governed. Id. Specifically, the Daftary landlord demanded and received monthly rent, and the lease ...


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