                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-13-00035-CV


                   HOPPENSTEIN PROPERTIES, INC, APPELLANT

                                            V.

              MCLENNAN COUNTY APPRAISAL DISTRICT, APPELLEE

                          On Appeal from the 170th District Court
                                  McLennan County, Texas
                Trial Court No. 2009-2194-4, Honorable Jim Meyer, Presiding

                                       May 20, 2014

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      This appeal and cross-appeal involve a contract dispute over office space leased

by the McLennan County Appraisal District (the District) from Hoppenstein Properties,

Inc. (Hoppenstein).    After entering into a lease with Hoppenstein (which involved

renovations to both new and old office space), the District eventually moved out of that

building and purchased another building in which to office. A jury rendered judgment in

favor of Hoppenstein. However, neither party was satisfied. Hoppenstein argues that

the trial court should have 1) granted its motion for judgment notwithstanding the verdict
on the amount of lost rent to which it was entitled and 2) awarded it attorney’s fees. The

District contends that 1) the trial court should have granted its motions for summary

judgment and judgment notwithstanding the verdict on the basis there was no funding

for the lease after December 31, 2009, thereby bringing into effect a contract provision

which specifically released it from liability, 2) the contract impermissibly created debt

and was void, and 3) the trial court erred in not excusing two jurors for cause. We affirm

the judgment.

       Lost Rent

       In its first issue, Hoppenstein argued it proved that the amount of damages (rent)

due it was $474,638, as a matter of law. Because the jury awarded a lesser sum

($373,638), the trial court allegedly was obligated to grant its motion for judgment

notwithstanding the verdict and award the greater amount. The trial court's denial of

that motion constituted error, according to Hoppenstein. The issue is overruled.

       We begin our discussion by referring to Hoppenstein's description of the

applicable law. It stated that:

       The movant must establish both that no evidence supports the jury’s
       answer and that the evidence conclusively establishes the answer sought
       in the motion. Ponce v. Sandoval, 68 S.W.3d 799, 805-06 (Tex. App.—
       Amarillo 2001, no pet.); Campbell v. C.D. Payne & Geldermann Secs.,
       Inc., 894 S.W.2d 411, 419-21 (Tex. App.—Amarillo 1995, writ denied). In
       other words, the movant must establish that it was entitled to a directed
       verdict on the issue, Ponce, 68 S.W.3d at 805, and that therefore the
       question needn’t have been submitted to the jury at all. Id.; Tex. R. Civ. P.
       301.


       To that, we add a principle uttered by our Supreme Court in City of Keller v.

Wilson, 168 S.W.3d 802 (Tex. 2005). There we were told that it is not necessary to

have testimony from both parties before a jury may disbelieve either; yet, a jury may not


                                            2
ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from

contradictions and inconsistencies, and could have been easily controverted. City of

Keller v. Wilson, 168 S.W.3d at 819-20. With that in mind, we turn to the record and

issue before us.

        Joan McCartney, an employee of Hoppenstein, testified that the total amount of

unpaid rent (without late fees and taxes) due through the end of the lease term was

$474,638.24. That sum purportedly included deductions for rentals paid by the District.

Hoppenstein also tendered into evidence, as Plaintiff's Exhibit 1.1, its general rent

ledger. The latter illustrated that the unpaid rent due, less late fees and taxes, was

$418,591.27 as of November 2012. Since the lease terminated in May of 2013, another

six months of rent would have been due from the District. If one was to multiply the

monthly rent, i.e., $9,864.53, by six and add that product to the rent indicated as due in

the ledger, the total rent due and unpaid would be $477,778.39. Admittedly, that sum is

slightly more than the amount to which McCartney testified.1                     To that, we add the

presence of evidence indicating a third sum was due and payable. It was calculated by

the District based upon entries appearing in the general rent ledger.2                         The latter

depicted the receipt of rentals from the District in an amount of $129,876.64. Should

one deduct that sum from the total rentals payable over the lease term (i.e., 60 x

9,864.53 or $591,871.80), the outstanding amount due from the District would equal

$461,995.16.

        1
          The District conceded, via its brief, that it "does not disagree with Hoppenstein’s assertion that
the rental rate was undisputed and that under the Commercial Lease, the monthly rental rate was
$9,864.53 a month and that the term of the Commercial Lease was for 60 months."
        2
         We note the District's reference to evidence of a $19,519.20 check representing the 4th Quarter
Office Rent. In referencing the check, the District attempts to fault McCartney for failing to expressly
mention the item in her testimony. While the witness may not have alluded to the check, the District does
not argue that the total payments entered in the rent ledger omitted the sum.

                                                     3
       On the other hand, the jury simply awarded $373,638. How it derived that sum is

unknown. We found no evidence of record from which one could reasonably infer that it

was all the rentals due from the District as of the end of the lease term. Nor does the

District cite us to any evidence or methodology from which the $373,638 amount can be

calculated. Rather, the smallest amount payable and established by the seemingly

uncontroverted evidence was that calculated by the District from entries appearing in

the general rent ledger. Again, that sum was $461,995.16. Yet, that is not the amount

Hoppenstein sought via its motion for judgment notwithstanding the verdict. Given this,

we cannot say it carried its burden to "establish both that no evidence supports the

jury’s answer and that the evidence conclusively establishes the answer sought in the

motion," that answer being the sum of $474,638.24.

       Attorney’s Fees

       Next, Hoppenstein contends that the trial court erred in denying it attorney's fees.

The latter were purportedly due it given the lease provisions and § 271.159 of the Local

Government Code.3 We overrule the issue.

       Section 271.159 provides:

       Attorney’s fees incurred by a local government entity or any other party in
       the adjudication of a claim by or against a local governmental entity shall
       not be awarded to any party in the adjudication unless the local
       governmental entity has entered into a written agreement that expressly
       authorizes the prevailing party in the adjudication to recover its reasonable
       and necessary attorney’s fees by specific reference to this section.

TEX. LOCAL GOV’T CODE ANN. § 271.159 (West 2005) (Emphasis added). The lease at

bar contained the following and only the following language regarding attorney's fees:


       3
          This section was repealed effective June 19, 2009, but was in effect at the time the parties
entered into the lease agreement.

                                                  4
“[a]ny person who is a prevailing party in any legal proceeding brought under or related

to the transaction described in this lease is entitled to recover prejudgment interest,

reasonable attorney’s fees, and all other costs of litigation from the nonprevailing party.”

As can be seen, the provision does not make specific reference to § 271.159. Such

was required by the plain language of the statute.

        Given that the legislature selected the words of the statute and that we are bound

to read the statute in a way that affords meaning to each word, Texas Dep’t. of Ins. v.

American Nat. Ins. Co., 410 S.W.3d 843, 853 (Tex. 2012), we cannot ignore the

verbiage requiring the existence of a "written agreement that expressly" authorizes the

recovery of fees "by specific reference to" § 271.159.          And, because the written

agreement at bar does not specifically reference that statute, the trial court did not err in

denying attorney's fees to Hoppenstein. Contrary to the latter's contention, a general

reference to the "laws of the State of Texas" in another part of the lease does not fill the

void.

        Cross-Appeal—Funding for the Lease

        Next, the District contends that it was relieved from having to perform the lease

terms due to a contract provision involving the availability of funding. The clause in

question stated:

        THE DISTRICT AND LANDLORD MUTUALLY AGREE THAT
        DISTRICT’S OBLIGATION TO PAY THE CONSIDERATION HEREIN
        EXPRESSED MAY BE MADE ONLY AND SOLELY FROM FUNDS
        AVAILABLE FOR THE PURPOSE OF THIS AGREEMENT. THE LOSS
        OR REDUCTION OF FUNDS BY THE DISTRICT SHALL RENDER THIS
        AGREEMENT NULL AND VOID AS TO THOSE PROVISIONS FOR
        WHICH FUNDING IS NOT AVAILABLE.




                                              5
According to the District, this provision rendered its obligations void because funding for

the agreement ceased after December 31, 2009. We overrule the issue.

      There is evidence of record illustrating the coffer used to fund the District's

expenses contained monies sufficient to satisfy the lease obligation. But, instead of

using the monies for that purpose, the board of directors charged with disbursing or

budgeting the funds opted to use them to acquire another facility.        It reached that

decision after the District's chief appraiser approached the board, recommended that a

new building be purchased, and advised it that the District had the discretion to end the

contract by simply omitting from future budgets money earmarked for lease payments.

In other words, monies were available to satisfy the District's lease obligation, but the

District not only opted to use them for another purpose but also swayed those in charge

of their dispersal to divert them to that other purpose. Under those circumstances, it

cannot be said that the funds were unavailable. See Garrison Indep. School Dist. v.

McDuffie, 414 S.W.2d 492, 496 (Tex. Civ. App.—Tyler 1967, writ ref’d n.r.e.) (defining

“available” to mean capable of being made use of, at one’s disposal, or within one’s

reach). Simply put, they were available but used for something else.

       Furthermore, we note that the conduct of the District tends to run afoul of

general contract principles.    For instance, where one assumes an obligation, he

generally cannot excuse his non-performance by voluntarily pursuing a course of

conduct that leaves him unable to perform. See, e.g., Solomon v. Greenblatt, 812

S.W.2d 7, 18 (Tex. App.—Dallas 1991, no writ) (stating that impossibility of performance

is not available as a defense to a party that by its voluntary act created the

impossibility); Calvin v. Kolterman, Inc. v. Underream Piling Co., 563 S.W.2d 950, 957



                                            6
(Tex. Civ. App.—San Antonio 1977, writ ref’d n.r.e.) (stating that the impossibility of

performance is not an excuse if it is subsequently occasioned by act or default of the

promisor). Nor may someone avail himself of non-performance when he prevents or

makes impossible the performance or happening of a condition precedent upon which

his liability is made to depend. Honaker v. Guffey Petroleum Co., 294 S.W. 259, 263

(Tex. Civ. App.—Amarillo 1927, writ ref’d). Similarly, where a promise is made to pay

an obligation from a fund to be realized in a certain way, there arises an implied

obligation to use reasonable diligence in performing the act upon which payment is

contingent. Id. Not only did the District, through the actions of its chief appraiser, fail to

use reasonable diligence in securing the lease monies, it actually lobbied against their

provision as lease payments. And, now it attempts to benefit from the very conduct it

undertook to prevent the occurrence of the condition upon which its liability purportedly

depended. Such is not condoned under this State's jurisprudence. Just as a person

accused of killing his parents is unentitled to mercy because he views himself an

orphan, a party to a contract is not relieved from performing because he interfered with

or otherwise prevented his own performance.

       Creation of Debt

       Next, the District contends that the lease violates article 11, § 7 of the Texas

Constitution.4 The latter states that “[n]o debt for any purpose shall ever be incurred in

any manner by any city or county unless provision is made, at the time of creating the

same, for levying and collecting a sufficient tax to pay the interest thereon and provide




       4
           The District sought both a summary judgment and a judgment notwithstanding the verdict on
this issue.

                                                 7
at least two percent (2%) as a sinking fund . . . .” Tex. Const. art. XI, § 7.5 We overrule

the issue.

        Appraisal districts are created by statute and constitute political subdivisions of

the State. TEX. TAX CODE ANN. § 6.01(a)&(c) (West 2008). So too are they governed

by a board of directors appointed by the taxing units that participate in the district, id. §

6.03(a); In re ExxonMobile Corp., 153 S.W.3d 605, 611 (Tex. App.—Amarillo 2004, no

pet.) and constitute entities independent from the cities and counties within their

borders. See State v. Heal, 884 S.W.2d 864, 870 (Tex. App.—Dallas 1994), rev’d on

other grounds, 917 S.W.2d 6 (Tex. 1996) (holding that the Dallas Central Appraisal

District is a political subdivision of the State and separate and distinct from the city of

Dallas). Simply put, the McLennan County Appraisal District is neither a city nor a

county for purposes of the constitutional provision at issue.

        Challenges for Cause

        Finally, the District complains of the trial court’s failure to grant its challenges for

cause to Juror No. 11, Amy Renee Williams, and Juror No. 27, Kenna Kay Horton. We

overrule the issue.

        To preserve error when a challenge for cause is denied, "a party must use a

peremptory challenge against the venire member involved, exhaust its remaining

challenges, and notify the trial court that a specific objectionable venire member will

remain on the jury list before exercising its strikes." Williams ex rel. Williams v. Skelton,

No. 10-06-00178-CV, 2007 WL 899907, 2007 Tex. App. LEXIS 2344, at *1-2 (Tex.

App.—Waco March 21, 2007, pet. denied) (mem. op.) (Second emphasis added).

        5
         Section 5 of article 11 also provides that “no debt shall ever be created by any city, unless at the
same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon
and creating a sinking fund of at least two per cent.” Tex. Const. art. XI, § 5.

                                                     8
"[T]he complaining party waives any error by not timely bringing such error to the

attention of the trial court prior to making his peremptory challenges." Hallett v. Houston

Northwest Medical Center, 689 S.W.2d 888, 890 (Tex. 1985) (Emphasis added); accord

Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 759 n.74 (Tex. 2006) (reiterating the

rule).

         Here, the record illustrates that the trial court denied the District's challenges for

cause. Thereafter, it exercised its peremptory challenges to remove jurors 11, 17, and

27. Once that happened, and immediately before the final jury was seated, counsel for

the District uttered:

         As the Court will recall, the defense tried to strike Juror No. 11, Williams;
         Juror No. 17, Rost, and Juror 27, Horton. Those were all denied.
         Because of that, we had to exercise peremptory strikes for those three
         jurors. Had we not had to use those peremptory strikes for those three
         jurors, we would have struck Juror No. 14, Travis; Juror No. 16, Perry, and
         Juror No. 22, Kinney. I just want that noted on the record before the jury
         has been seated in the case and before I’ve been told what the plaintiff’s
         strikes are.

Because the District notified the trial court of its complaint after exercising its

peremptory challenges, the issue before us was waived.

         Having overruled all the issues of both parties, we affirm the judgment of the trial

court.



                                                           Brian Quinn
                                                           Chief Justice




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