



WAP v. Feyznia                                                      



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

 

ON MOTION FOR REHEARING
 



NO. 3-92-453-CV



WEST ANDERSON PLAZA,

	APPELLANT

vs.



EXXON MEHDI FEYZNIA,

	APPELLEE


 


FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 212,129, HONORABLE STEVEN RUSSELL, JUDGE PRESIDING

 



	The opinion and judgment issued herein on August 25, 1993, are withdrawn, and
the following opinion is substituted for the earlier one.
	West Anderson Plaza ("the Landlord") sued Exxon Mehdi Feyznia ("the Tenant")
in a forcible-detainer action.  The Tenant counterclaimed, asserting violations of section
17.46(b)(12) of the Deceptive Trade Practices Act ("DTPA"), Tex. Bus. & Com. Code Ann.
§§ 17.41-.63 (West 1987 & Supp. 1994).  The jury found that after having received due notice
from the Landlord and an opportunity to cure, the Tenant had breached the lease.  The jury also
found, however, that the Landlord had damaged the Tenant in the amount of $1,000 by
misrepresenting that the lease "conferred or involved rights, remedies or obligations which it did
not have or involve," a violation of section 17.46(b)(12) of the DTPA.  Based on the jury's verdict, the trial court rendered judgment that the Landlord recover possession of the premises,
but that the Tenant recover from the Landlord $3,000 in damages and "additional damages" based
on the Tenant's DTPA counterclaim.  Further, because the jury found the same amount of
attorney's fees for each party, the trial court ordered that neither party was entitled to a net
recovery of attorney's fees from the other.  On appeal, the Landlord asserts that the evidence was
insufficient to support the jury's findings regarding the Tenant's DTPA counterclaim, including
the findings of damages and attorney's fees.  In two cross-points, the Tenant asserts that the
evidence was insufficient to support the jury's findings that he breached the lease and that the trial
court therefore erred in awarding the Landlord its attorney's fees.  We will reverse and render
in part and modify and affirm in part.


FACTUAL AND PROCEDURAL BACKGROUND

	In April 1988 the Landlord and the Tenant executed a written lease agreement
wherein the Tenant leased from the Landlord a commercial space in the West Anderson Plaza
Shopping Center in Austin.  The Tenant operated a business on the leased premises under the
name of Le Fun Family Game Center.  At the same time the lease agreement was executed, the
parties executed an addendum to the lease, which provided in part:


	Covenant. . . . . [Tenant] agrees that it will not allow loitering or other
loud disturbing behavior by its customers or those who are upon the parking lot or
outside of the leased premises which causes a disturbance to other tenants or
customers of the shopping center; that it will not permit any of its customers or
licensees to destroy any of the property of the Landlord located in the center, or
of any other tenant located in the center.

 Remedy for Breach of Covenant.  [Tenant] agrees that if Landlord notifies
[Tenant] that it has breached the above covenant by giving [Tenant] written notice
of such breach that [Tenant] will cause the breach to be cured within five (5)
calendar days from the date of such notification.  [Tenant] further agrees that if
Landlord notifies tenant of a second breach of this covenant within a ninety (90)
day period, that [Tenant] will retain a security guard to enforce the terms of this
covenant.

	On August 8, 1991, the Landlord notified the Tenant by letter that it had received
complaints that the Tenant's patrons were "creating a nuisance, annoying other tenants within the
Center, and intimidating potential customers."  Further, the Landlord indicated that the shopping
center had "experienced repeated damage to the landscaping and irrigation system outside your
location due to vandalism."   Accordingly, the Landlord stated that the Tenant had breached the
addendum's "no-disturbance" covenant and that "such breach must be cured within five days from
receipt of this notice."
	On September 23, 1991, the Landlord again notified the Tenant by letter that
"[y]our customers continue to loiter in and around your premises and the parking lot, damage
property belonging to other tenants and their customers, and engage generally in abusive,
disruptive, and disturbing behavior in and around your premises."  Accordingly, the Landlord
indicated that this letter was to serve as notice of a second breach and stated that "we hereby
demand that you immediately hire a security guard" and that "we expect to see a security guard
on your premises according to the terms of the Addendum no later than one (1) day after you
receive this letter."
	On October 10, 1991, after some oral communications between the parties
concerning whether the Tenant was required to hire a "licensed" security guard, the Landlord
again notified the Tenant by letter that "it is the Landlord's position that you must immediately
hire a security guard from a licensed security company."  The letter indicated that the Tenant had
until October 12 to engage such services.  
	On November 10, 1991, the Landlord sent the Tenant a letter stating that "[y]ou
have defaulted by failing to retain a security guard.  Because of this default, [the Landlord] intends
to terminate this Lease effective as of November 25, 1991."  By letter dated November 26, the
Landlord notified the Tenant that the lease was terminated effective November 25.
	Following termination of the lease and refusal of the Tenant to vacate the premises,
the Landlord initiated this forcible-detainer action.  The Tenant asserted several counterclaims,
including a claim that the Landlord's letters to the Tenant contained misrepresentations in
violation of section 17.46(b)(12) of the DTPA.  Based on the jury's verdict, the trial court
rendered judgment that the Landlord recover possession of the premises and that the Tenant
recover $3,000 in damages and additional damages on his DTPA counterclaim.  Further, because
the jury found an equal amount of attorney's fees for each party, the trial court ordered that
neither party was entitled to a net recovery of attorney's fees.


THE LANDLORD'S POINTS OF ERROR

	The Landlord asserts five points of error challenging the trial court's judgment. 
In its first and fourth points of error, the Landlord complains that the evidence is legally and
factually insufficient to support the jury's affirmative finding that the Landlord had misrepresented
the rights, remedies, or obligations of the lease and that such misrepresentation was a producing
cause of damage to the Tenant.  In the trial below, the Tenant asserted that the Landlord had made
two misrepresentations regarding the lease in violation of section 17.46(b)(12) of the DTPA:
(1) representing that a licensed security guard was required under the terms of the lease
addendum, and (2) demanding that the Tenant provide a security guard in one or two days from
the date the Landlord notified the Tenant that such services were required.  The Landlord
contends that such statements were not actionable under the DTPA; it also argues there is no
evidence that its statements about the parties' contractual rights and duties were a producing cause
of damages to the Tenant.  We agree with both contentions.


1. APPLICABILITY OF THE DTPA
	The Landlord asserts first that its statements were not actionable under section
17.46(b)(12) of the DTPA.  As to the first claimed misrepresentation, the lease addendum
required the Tenant to "retain a security guard" on the occurrence of certain conditions.  The
Tenant has never disputed that such conditions occurred and that he was therefore required to
retain a security guard.  The parties disagreed, however, on whether a licensed security guard was
required.  The Tenant interpreted the lease addendum as allowing any designated person, even an
employee of the Tenant who was performing other responsibilities, to serve as the required
security guard.  The Landlord, on the other hand, interpreted the lease addendum as
contemplating a licensed security guard, as indicated in its October 10, 1991 letter:


This letter is to formally notify you that it is the Landlord's position that you must
immediately hire a security guard from a licensed security company.  

	The covenant specifically requires you to "retain a security guard."  It does
not expressly or impliedly allow you to use an unlicensed employee to serve in that
capacity.

	Section 17.46(b)(12) of the DTPA declares the following to be an unlawful
deceptive trade practice:  "representing that an agreement confers or involves rights, remedies,
or obligations which it does not have or involve, or which are prohibited by law."  The Tenant
asserts, in essence, that this section creates a cause of action for any statement about contractual
rights or obligations that is later determined to be incorrect.  We disagree.
	First, we must not decide the scope or meaning of statutory language by a bloodless
literalism in which text is viewed as if it had no context.  Brown v. Owens, 674 S.W.2d 748, 750
(Tex. 1984); State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979); State v. Dyer, 200 S.W.2d 813,
815 (Tex. 1947).  The Texas Supreme Court has held that in construing the DTPA,

[t]he primary emphasis is on the intention of the legislature, keeping in view "the
old law, the evil and the remedy."  Legislative intent should be determined from
the language of the entire Act and not isolated portions.  The court is not
necessarily confined to the literal meaning of the words used, and the legislative
intent rather than the strict letter of the Act will control.

Pennington v. Singleton, 606 S.W.2d 682, 686 (Tex. 1980); see also Big H Auto Auction, Inc.
v. Saenz Motors, 665 S.W.2d 756, 758 (Tex. 1984).  The underlying purposes of the DTPA are
"to protect consumers against false, misleading, and deceptive business practices, unconscionable
actions, and breaches of warranty."  DTPA § 17.44.  While the Act must be liberally construed
to promote those purposes, it need not be construed to go beyond such purposes.  See Celotex
Corp. v. Gracy Meadow Owners Ass'n, 847 S.W.2d 384, 390 (Tex. App.Austin 1993, writ
denied).  We believe that penalizing the expression of reasonable and honestly held opinions
regarding the meaning of contract language goes far beyond protecting consumers against false,
misleading, and deceptive business practices and was not intended by the legislature.
	Second, in construing a contract, courts should consider "the entire act, its nature
and object, and the consequences that would follow from each construction."  Sharp v. House of
Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991); see also Tex. Gov't Code Ann. §§ 311.023(1),
(5) (West 1988).  We are also authorized to presume that, in enacting a statute, the legislature
intended "a just and reasonable result."  Tex. Gov't Code Ann. § 311.021(3) (West 1988).  It is
well settled that courts presume the legislature did not intend for a statute to produce unjust,
absurd, or unreasonable results.  See State v. Mauritz-Wells Co., 175 S.W.2d 238, 242 (Tex.
1943); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); King v. Texas Employers'
Ins. Ass'n, 716 S.W.2d 181, 183 (Tex. App.Fort Worth 1986, no writ).  We believe that
accepting the construction urged by the Tenant in this case would produce a result that is unjust
and unreasonable, if not absurd.  The existence of disagreements about the meaning of contractual
provisionsor any language, for that matteris the rule rather than the exception.  Common
experience teaches that such disagreements need not involve any hint of unfairness or deception. 
Yet the Tenant's proposed construction of section 17.46(b)(12) would punish the "losing" party
in every such disagreement.  A party to a contract could not say to the other party, "I think this
contract permits me to do X," or "I believe this agreement requires you to do Y," without fearing
that damages, attorney's fees, and some amount of DTPA "additional damages" could later be
awarded against him if his interpretation proved to be incorrect.  At best, such a construction
would have a dramatic chilling effect on business relations; at worst, it would create commercial
chaos.  We decline to adopt it.
	Having concluded that the Tenant's position of absolute literalism is unacceptable,
the question remains:  By what standard should courts decide whether statements about contractual
rights and obligations fall within the ambit of section 17.46(b)(12)?
	In an apparent search for a bright-line rule, one court has recognized a distinction
between representations that are "factual" and those that are "interpretive," holding that the former
may be actionable while the latter are not, at least in the absence of some evidence of overreaching
or victimizing.  See Group Hospital Servs., Inc. v. One & Two Brookriver Ctr., 704 S.W.2d 886,
888-89 (Tex. App.Dallas 1986, no writ).  This distinction seems to us not wholly satisfactory,
because the line between factual and interpretive statements is sometimes blurred.  Indeed, a single
statement can easily contain elements of both factual assertion and legal interpretation, analogous
to the familiar but recondite "mixed question of law and fact."
	Another court has focused on whether the relevant contract language is
unambiguous or ambiguous, holding that incorrect representations concerning an unambiguous
provision may be actionable, while such representations concerning an ambiguous provision are
not actionable.  See Quitta v. Fossati, 808 S.W.2d 636, 644-45 (Tex. App.Corpus Christi 1991,
writ denied); see also Enterprise-Laredo Assocs. v. Hachar's, Inc., 839 S.W.2d 822, 828-29,
832-33 (Tex. App.San Antonio) (citing both Group Hospital and Quitta approvingly), writ
denied per curiam, 843 S.W.2d 476 (Tex. 1992).  Again, this distinction, while helpful, does not
seem to us wholly satisfactory.  For example, it has been argued that a misrepresentation about
rights or obligations arising from unambiguous contract language is "superfluous to the parties'
legal obligations and should be simply refuted or ignored by the other party."  William E. Marple,
Requiescat for an Epitaph:  Breach of Contract is Not a Tort, 56 Tex. B. J. 656, 659 (1993).
	In actions for common-law fraud, courts have distinguished between statements of
"fact" and statements of "opinion," holding that false statements of fact may be actionable while
statements of opinion as to a point of law or the legal effect of a document generally will not
support an action for fraud.  See Fina Supply, Inc. v. Abilene Nat'l Bank, 726 S.W.2d 537, 540
(Tex. 1987); Safety Casualty Co. v. McGee, 127 S.W.2d 176, 177-79 (Tex. 1939).  This
distinction is not directly applicable here, of course, because "misrepresentations which do not
necessarily constitute common law fraud may be actionable under the DTPA."  Eagle Properties,
Ltd. v. Scharbauer, 807 S.W.2d 714, 724 (Tex. 1990).  Nonetheless, the common-law fraud cases
have approved certain exceptions to the general rule denying liability for the statement of an
opinion, and in that regard we believe they are helpful:

[I]n certain circumstances a statement of opinion [as to a point of law or the legal
effect of a document] can rise to the level of fraud.  A party having superior
knowledge, who takes advantage of another's ignorance of the law to deceive him
by studied concealment or misrepresentation, can be held responsible for this
conduct.  Relief may also be granted for misrepresentation as to a point of law or
of legal rights where there is a fiduciary or confidential relationship of trust
between the parties.  Additionally, misrepresentations involving a point of law will
be considered misrepresentations of fact if they were intended and understood as
such.


Fina Supply, 726 S.W.2d at 540.
	Rather than attempting to determine the applicability of the DTPA from a single
factor such as ambiguity, we think it appropriate to view the totality of the circumstances, taking
into consideration all relevant factors, including:
	 Whether the representation was clearly factual, clearly interpretive, or some less clear
combination of the two;
	 Whether the relevant contractual language was ambiguous or unambiguous;
	 Whether the parties were in a substantially equal position of knowledge and information;
	 Whether there was evidence of overreaching or victimizing;
	 Whether there was evidence of unconscionable conduct;
	 Whether there was a confidential or fiduciary relationship between the parties.
	From a review of the circumstances in the present case, we do not believe the
Landlord's statement that the lease required the Tenant to hire a licensed security guard was
actionable under section 17.46(b)(12) of the DTPA.  First, the representation was clearly
interpretive; indeed, the Landlord's letter begins with the phrase, "It is the Landlord's position
. . . ," and later accurately quotes the actual contract language.  Next, the relevant contract
language is, in our opinion, ambiguous on the issue of licensing; that is, after applying the usual
presumptions, the lease provision is still reasonably susceptible to more than one meaning on this
issue.  Further, the evidence does not reflect that either party had substantially superior access to
knowledge or information; nor does there appear to have been any overreaching or victimizing. 
There is no evidence of unconscionable conduct by the Landlord.  Finally, there was no
confidential or fiduciary relationship between the parties.  Viewing the totality of the
circumstances, we hold that as a matter of law the Landlord's statement concerning the duty to
hire a licensed security guard, even though apparently found by the jury to be incorrect, was not
actionable under section 17.46(b)(12) of the DTPA. (1)
	As to the second claimed misrepresentation, both parties agree that the lease
addendum did not specify the time limit within which the Tenant was required to hire a security
guard after receiving a second notice of breach of the no-disturbance covenant.  The addendum
simply stated that if the Landlord notified the Tenant of a second breach within a ninety-day
period, the Tenant would "retain a security guard to enforce the terms of this covenant."  The
Tenant was notified of the second breach by letter on September 23, 1991.  In the same letter, the
Landlord indicated that "we hereby demand that you immediately hire a security guard" and that
"we expect to see a security guard on your premises according to the terms of the Addendum no
later than one (1) day after you receive this letter."  More than two weeks later, on October 10,
in response to the Tenant's inquiry regarding the use of employees as security guards, the
Landlord indicated by letter that it expected the Tenant to employ a licensed security guard by
October 12, 1991.
	Based on these statements by the Landlord, the Tenant asserts that "[c]learly, if the
Lease did not specify a time limit, the representation that [the Tenant] had one day under the
Addendum to hire a guard was a factual misrepresentation."  We disagree.  The phrase used by
the Landlord, "we expect to see," is not a factual representation that the lease contains an express
provision requiring one-day compliance; rather, it implies a personal interpretation.  Moreover,
because the lease did not specify a time limit, the Tenant would have a "reasonable time" to
comply.  See Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944); Pearcy v. Environmental
Conservancy of Austin & Central Texas, Inc., 814 S.W.2d 243, 246 (Tex. App.Austin 1991,
writ denied).  Such a vague limitation is open to interpretation and therefore is, in the sense that
is important here, ambiguous.  The Tenant also asserts that "one day is not a reasonable time in
which to negotiate a contract for security services."  We construe this as a claim that the
Landlord's interpretation imposing a one-day time limit within which to comply with the security-guard provision was overreaching or victimizing.  Under the terms of the lease addendum,
however, a security guard would only be required after the covenant to prevent disruptive conduct
on the premises had been breached twice.  The Landlord had twice notified the Tenant of incidents
of vandalism, property damage, and abusive, disruptive, and disturbing behavior in and around
the leased premises.  Due to the nature of the covenant breached, the Landlord interpreted the
security-guard provision as requiring virtually an immediate response from the Tenant.  Based on
the facts of this case, we do not believe such an interpretation is unreasonable on its face; in other
words, the Landlord's expectation that the Tenant hire a security guard within one day of
notification does not, by itself, show that the statement was unreasonable, overreaching, or
victimizing.  Indeed, the Tenant does not point to any evidence that he was in fact unable to
comply with the time limit stated by the Landlord.  In fact, although the Landlord indicated in its
September 23 letter that it expected one-day compliance with the security-guard provision, the
Landlord subsequently gave the Tenant until October 12 to comply.  Moreover, the Landlord did
not notify the Tenant that it intended to terminate the lease based on the Tenant's failure to hire
a licensed security guard until November 10 and did not terminate the lease until November 25. 
Viewing the totality of the circumstances, we conclude that the record contains no evidence that
the Landlord's statement that it expected the Tenant to hire a security guard within one day of
notification was actionable under section 17.46(b)(12) of the DTPA.


2. PRODUCING CAUSE
	Even if we are incorrect about the foregoing, however, the Tenant still may not
recover under its DTPA claim.  The Landlord also asserts in points of error one and four that the
record contains legally and factually insufficient evidence that its statements regarding the lease
were a producing cause of damage to the Tenant.  The sole injury to which the Tenant testified
was $1,502.05, which represented the difference between the cost of using a licensed security
guard and using an existing employee as a security guard.  The jury, limited by the charge to
considering only this injury, found damages of $1,000; the judgment awarded the Tenant that
amount, trebled pursuant to section 17.50(b)(1) of the DTPA.
	"Producing cause" was correctly defined in the jury charge as "an efficient, exciting
or contributing cause, which, in a natural sequence, produced the damages or harm complained
of, if any."  See Teague v. Bandy, 793 S.W.2d 50, 57 (Tex. App.Austin 1990, writ denied). 
In the present case, however, the timing of the relevant events precludes the conclusion that the
Landlord's representations caused the Tenant's damages.  The Tenant's own testimony showed
that he did not finalize the hiring of a licensed security guard until November 29, 1991, after the
Landlord had terminated the lease on November 25 and demanded that the Tenant vacate the
premises.  The lease addendum expressly states that "[i]f Landlord elects to terminate this lease,
then both [Tenant] and Landlord shall have no further obligations under the terms of this lease and
[Tenant] shall immediately surrender possession to Landlord."  As discussed above, the Landlord
properly terminated the lease and was entitled to possession of the premises.
	Paragraph 19 of the lease provided that "any holding over by the [Tenant] . . . after
the expiration of this lease shall operate and be construed as a tenancy from month to month." 
The Tenant argues that when he refused to vacate the premises after the Landlord terminated the
lease, he was merely "holding over," thereby calling into play the terms of Paragraph 19. 
Through this reasoning, the Tenant contends that when he hired a licensed security guard on
November 29, 1991, the parties were still operating under the terms of the lease, thus preserving
his argument that the Landlord's misrepresentations were a producing cause of his damages.  We
disagree.  The lease did not "expire," it was terminated.  The express language of the addendum
that upon termination the parties would have "no further obligations under the terms of this lease"
evidences an unmistakable intent to treat such a situation differently from a mere expiration of the
lease term.  After termination, the Tenant might thereafter have been liable to the Landlord for
damages if he refused to vacate or damaged the property, but he would not liable "under the
lease."  See Rohrt v. Kelley Mfg. Co., 349 S.W.2d 95, 97-98 (Tex. 1961).  Likewise, because the
lease was terminated here, the Tenant cannot claim as damages any expenses that he voluntarily
incurred for the continued operation of his business on the leased premises at a time when he had
no legal right to be there.
	We sustain the legal-sufficiency challenges in points of error one and four.
	In its second point of error, the Landlord complains that the evidence was
insufficient to support the jury's answer to question number four, regarding the Tenant's damages
caused by the Landlord's representations in violation of section 17.46(b)(12).  In light of our
foregoing conclusion that there was no evidence to support the answer to the misrepresentation
issue, we need not address the Landlord's challenge to the damages question.
	In its third and fifth points of error, the Landlord complains that the evidence was
insufficient to support either the submission of the question to the jury or the jury's affirmative
finding as to the amount of attorney's fees the Tenant should recover based on his DTPA
counterclaim.  Only consumers who prevail are entitled to an award of attorney's fees under the
DTPA.  Tex. Bus. & Com. Code Ann. § 17.50(d) (West 1987).  Because we have concluded
there was no evidence to support the Tenant's DTPA counterclaim, he has not prevailed and is
not entitled to a recovery of attorney's fees.  We sustain points of error three and five.


THE TENANT'S CROSS-POINTS
	In two cross-points, the Tenant complains that the evidence is insufficient to
support the jury's finding that he breached the lease agreement and that, as a result, the trial court
erred in awarding the Landlord possession of the premises and attorney's fees.  The Tenant
contends that the evidence is insufficient to support the jury's finding because he was not given
thirty days to cure after notice of default.  
	In his first cross-point, the Tenant argues generally that the Landlord's failure to
give him proper notice rendered the Landlord's termination of the lease ineffective.  In answer
to question one, the jury found that the Tenant had breached the lease agreement after due notice
and opportunity to cure.  In the context of this forcible-detainer suit, question one was submitted
to the jury solely for the purpose of determining which party had the right to possession of the
leased premises.  The trial court recited in its judgment that, because the jury found that the
Tenant had breached the lease, "[t]he jury returned a verdict in favor of [the Landlord] on its
cause of action for possession of the premises."  Based on this verdict, the trial court rendered
judgment that the Landlord recover possession of the leased premises.
	In a forcible-detainer action, the issue of possession is not appealable where, as
here, the premises are used for commercial purposes:  "A final judgment of a county court in a
forcible entry and detainer suit or a forcible detainer suit may not be appealed on the issue of
possession unless the premises in question are being used for residential purposes only."  Tex.
Prop. Code Ann. § 24.007 (West Supp. 1994).  Further, a finding on a threshold issue such as
the adequacy of notice before termination cannot be appealed if such finding is merely an element
of the issue of possession.  Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833 (Tex.
App.Houston [14th Dist.] 1993, writ denied) (existence of landlord-tenant relationship is element
of possession issue and therefore not reviewable); Powell v. Mel Powers Inv. Builder, 590 S.W.2d
837, 838-39 (Tex. Civ. App.--Houston [14th Dist.] 1979, no writ) (adequacy of notice is element
of possession issue and therefore not reviewable).
	In his second cross-point, the Tenant contends that he is not appealing "the issue
of possession, but rather the issue of attorneys' fees."  The Tenant cites two cases for the
proposition that a party may appeal an award of damages or attorney's fees in the context of a
forcible-detainer action.  See RCJ Liquidating Co. v. Village Ltd., 670 S.W.2d 643, 644 (Tex.
1984); Lee McGuire 1900 Co. v. Inventive Indus., Inc., 566 S.W.2d 95, 97 (Tex. Civ.
App.Beaumont 1978, writ dism'd).  These cases are not applicable here.  First, they were
decided under an earlier statutory provision that contained substantially different wording from
the current statute.  Compare Tex. Prop. Code Ann. § 24.007 (West Supp. 1994) with Revised
Statutes, 39th Leg., R.S., § 1, art. 3992, 1925 Tex. Rev. Civ. Stat. 2, 1083 (since repealed). 
Second, even assuming that an award of damages or attorney's fees may, for some purposes, be
appealed under present section 24.007, the Tenant in the present case challenges the attorney's
fee award by attacking a jury finding that was material only to the issue of possession.  Under the
terms of the lease agreement between the parties, attorney's fees were recoverable for the
"successful prosecution or defense of any legal or equitable proceedings to construe this lease or
enforce any right or obligation arising from it."  Further, the Property Code provides that "if a
written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to
recover reasonable attorney's fees from the tenant."  Tex. Prop. Code Ann. § 24.006(b) (West
Supp. 1994).  Thus, in the present case, the only prerequisite for the recovery of attorney's fees
is that the Landlord "prevail" and be "successful."
	Here, the Landlord clearly "prevailed in" and "successfully prosecuted" its forcible-detainer suit, because it was awarded possession.  The Landlord has, therefore, satisfied the
contractual and statutory prerequisite for recovering its attorney's fees.  Moreover, because the
issue of possession may not be appealed, there is no way the Landlord could, in this appeal, lose
its status as the prevailing and successful party in the forcible-detainer suit.
	The Landlord's right to recover its attorney's fees in this case is based on the
following logical application of law to facts:  (1) If the Tenant breached the lease agreement, the
Landlord was entitled to terminate the lease and obtain possession of the leased premises; (2) if
the Landlord was entitled to possession, which the Tenant refused to yield, the Landlord was
entitled to prevail in its forcible-detainer action; (3) if the Landlord prevailed in its forcible-detainer action, the Landlord was entitled to recover its attorney's fees.  The Tenant urges us to
determine that the evidence was insufficient to support the jury's finding that the Tenant breached
the lease and, on that determination, reverse the award of attorney's fees.  However, because the
breach-of-lease finding is, in this case, material only to the possession issue, we are statutorily
prohibited from reviewing that finding.  See Prop. Code § 24.007.
	Having no jurisdiction to consider such a complaint, we do not reach the merits of
the Tenant's cross-points.

CONCLUSION
	Based on the above analysis, (1) we reverse the judgment of the trial court
awarding damages and attorney's fees to the Tenant, and we render judgment that the Tenant take
nothing by his DTPA counterclaim; (2) we conclude that this Court is without jurisdiction to
consider the Tenant's cross-points; and (3) we modify the trial court's judgment to award the
Landlord $34,000 for attorney's fees through trial, plus an additional $7,000 for attorney's fees
through appeal to this Court, plus an additional $5,000 if this cause is appealed to the Supreme
Court of Texas; as modified, we affirm the remainder of the judgment.


  
					J. Woodfin Jones, Justice
Before Chief Justice Carroll, Justices Aboussie and Jones
Reversed and Rendered in Part; Modified and Affirmed in Part
Filed:   May 11, 1994
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1.        The case of Leal v. Furniture Barn, Inc., 571 S.W.2d 864 (Tex. 1978), is readily
distinguishable.  There, the Leals had contracted to pay $40 per month for certain furniture,
which was to be delivered only after the full price was paid.  When the Leals fell behind in
their payments, the furniture store told them that if they did not bring their payments current
they would forfeit all the money they had already paid, even though the contract did not
provide for any such forfeiture.  Thus, the store's representation was not "clearly
interpretive," the contract was not ambiguous on the relevant issue, the parties were obviously
not in a substantially equal position of knowledge and information, and there was strong
evidence of overreaching and victimizing.
