                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00312-CV


HOPPENSTEIN PROPERTIES, INC.                                          APPELLANT

                                         V.

BILL SCHOBER AND ANOTHER                                              APPELLEES
MAN’S TREASURE, L.L.C.

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       FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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                                    OPINION
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      This is an appeal from a jury trial on what damages, if any, a landlord of

commercial lease property was entitled to when the tenant prematurely vacated

the leased premises. In three issues, appellant Hoppenstein Properties, Inc.

challenges the jury’s finding that it failed to mitigate its damages upon the breach

by appellees Bill Schober and Another Man’s Treasure, L.L.C. (issues one and

two) and the trial court’s failure to include in the jury charge that the breaching
tenant bears the burden to prove the landlord’s failure to mitigate (issue three).

We reverse and remand.

                     Factual and Procedural Background

      Appellees as tenant signed a Shopping Center Lease with appellant as

landlord. The lease term began May 1, 2006 and was to continue for six years

and three months.       Appellees agreed to use the leased premises for

“Furniture/Antique Sales.”

      When appellees first moved into the leased premises, the condition was

“not particularly bad.” Appellees did general cleanup, painted, and carpeted one

of the rooms. There were some squirrels inside, which condition continued to

occur periodically while appellees occupied the premises. Appellees spent about

$40,000 making the space ready.

      However, the business did not do well after moving to the leased

premises.1 Schober wrote appellant on December 31, 2006, asking for some of

the rent to be deferred, which appellant agreed to. But eventually, on April 1,

2007, appellees vacated the leased premises and informed appellant by letter.

According to Schober, as of that date, the leased premises were “cleaned up”

and in the same condition as when appellees moved in.

      On July 17, 2007, appellant sued appellees for damages for prematurely

vacating the premises. Appellees stipulated that they had defaulted on the lease

      1
      Appellant’s business had done well in a prior location in another city, but
he had to move because that landlord took over his space.

                                        2
but contended that appellant had failed to mitigate its damages. After a trial, a

jury awarded appellant $5,500 in damages although appellant had asked for

$107,584.54. Appellant appeals from the jury’s verdict.

              Legal and Factual Sufficiency of Jury’s Damages Award

      In its first two issues, appellant challenges the legal and factual sufficiency

of the jury’s $5,500 damages award.          According to appellant, there is no

evidence to support the jury’s implied finding that appellant wholly failed to

mitigate its damages caused by appellees’ breach of the lease, or, in the

alternative, the evidence supporting that finding is too weak or against the great

weight and preponderance of the evidence.

      Standard of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

                                         3
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

evidence supporting the finding is so weak, or so contrary to the overwhelming

weight of all the evidence, that the answer should be set aside and a new trial

ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on

reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150

Tex. 662, 244 S.W.2d 660, 661 (1951). When, as here, the party without the

burden of proof on a fact issue complains of an adverse fact finding, that party

must show that there is “insufficient evidence” supporting the finding, that is, that

the evidence supporting the finding is too weak or that the finding is against the

great weight and preponderance of the evidence contrary to the finding. See

Garza, 395 S.W.2d at 823; W. Wendall Hall, Standards of Review in Texas, 38

St. Mary’s L.J. 47, 263, 265 (2006).

      Applicable Law

      A landlord has a duty to make reasonable efforts to mitigate damages

when the tenant breaches the lease and abandons the property. Tex. Prop.

Code Ann. § 91.006(a) (Vernon 2007); Austin Hill Country Realty, Inc. v.

Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997); Landry’s Seafood

                                         4
House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 436 (Tex. App.––Dallas 2007,

pet. denied). The landlord’s failure to use reasonable efforts to mitigate damages

bars the landlord’s recovery against the breaching tenant only to the extent that

damages reasonably could have been avoided. Austin Hill Country Realty, 948

S.W.2d at 299. However, the landlord is not required to simply fill the premises

with any willing tenant; the replacement tenant must be suitable under the

circumstances. Id.

      A tenant’s assertion that a landlord failed to mitigate damages is an

affirmative defense. Austin Hill Country Realty, 948 S.W.2d at 300; McGraw v.

Brown Realty Co., 195 S.W.3d 271, 277 (Tex. App.––Dallas 2006, no pet.).

Thus, the tenant properly bears the burden of proof to demonstrate that the

landlord has failed to mitigate damages and the amount by which the landlord

could have reduced its damages. Austin Hill Country Realty, 948 S.W.2d at 300.

A defendant is not entitled to any reduction in the amount of damages if it does

not prove the amount of damages that could have been avoided. Cole Chem. &

Distrib., Inc. v. Gowing, 228 S.W.3d 684, 688 (Tex. App.––Houston [14th Dist.]

2005, no pet.); Broken Spoke Club, Inc. v. Butler, No. 02-02-00116-CV, 2004 WL

1858119, at *2–3 (Tex. App.––Fort Worth Aug. 19, 2004, no pet.) (mem. op.).

The policy underlying mitigation is to avoid waste rather than penalize the

mitigating party for not doing enough.      See Austin Hill Country Realty, 948

S.W.2d at 298–99; MOB 90 of Tex., L.P. v. Nejemie Alter, M.D., P.A., No. 13-08-



                                        5
00173-CV, 2009 WL 1026603, at *3 (Tex. App.––Corpus Christi Apr. 16, 2009,

no pet.) (mem. op.).

      Applicable Facts

      Norman Hoppenstein, who is appellant’s vice president and a shareholder,

testified that appellees’ initial minimum guaranteed rent was $840 per month,

plus triple net charges,2 for the first month and for months five through twenty-

four. According to Hoppenstein, the rent was “very reasonable” for such a large

space. Adding the triple net charges, the total rent payment was $2,500 per

month.    For months twenty-five through forty-eight, the total monthly rent

increased to $3,000 per month ($1,340 minimum guaranteed rent plus triple net

expenses). The lease also provided for a ten percent late fee if appellees did not

timely pay rent by the first day of each month.

      Hoppenstein testified that appellant received the last full rent payment from

appellees on December 8, 2006 and that it received two $1,000 payments

thereafter. Although appellees did not pay the full rent for January and February,

appellant did not start charging them a ten percent late fee each month until

March 2007. Appellant calculated as part of its damages fourteen late fees of

$84 and twelve late fees of $134, based on a percentage of the increased rent

beginning in month twenty-four.


      2
        A triple net lease is one in which the tenant’s rent includes a percentage
of the landlord’s real property taxes, insurance, and common area maintenance
charges for the property in addition to the basic rent.

                                         6
      After appellant received notice from appellees that they had vacated the

space, appellant “contracted to have a for-lease sign up.        And . . . start[ed]

answering inquiries about the space from people who might be interested in

leasing the space.” Hoppenstein also said that appellant “continued to show the

space . . . [and] spoke[] to a number of people.” He testified that appellant

eventually leased part of the space to a hookah bar but had to spend $56,041.88

to renovate that part of the space for the new tenant.3 Hoppenstein could not

recall whether he got any additional bids for the improvements that were done for

the hookah bar.

      At the time of trial, the hookah bar was paying rent at a higher rate than the

rate appellees were obligated to pay in their lease. Appellant credited the rental

paid by the hookah bar to appellees’ outstanding rent. The total credit appellant

applied to appellees’ lease was $14,783, after applying (1) credits for

reconciliation of the triple net charges and for the $2,500 security deposit and (2)

a debit for the cost of the renovations to the premises for the hookah bar.

Appellant asked for total damages of $107,584.54.

      Schober testified that around the time he started to vacate the premises,

he heard that another business owner in the center, Ken Cook, might be

interested in leasing the leased premises. According to Schober, when he talked


      3
        Hoppenstein also testified that the day before trial, a banquet hall signed a
lease for the remainder of the premises but that the lease would not be effective
until the prospective tenant obtained all necessary municipal approvals.

                                         7
to Cook, Cook said, “[T]hat’s going to be just what I need,” and later came to see

the leased premises.

      Cook testified that he owns an “ad specialty business,” printing T-shirts

and making embroidery, signs, banners, and advertising-type items. At the time

of trial, he had been in business for fifteen years.

      According to Cook, when he moved his business into the shopping center,

next to a bingo hall, appellant’s leasing agent called and said that people at the

bingo hall were complaining about the odor released when he printed a certain

type of sign that he prints frequently.       He tried to reduce the odor, but the

complaints continued until appellant’s leasing agent called and told Cook he

could no longer print those types of signs on the premises. The leasing agent

was the only person he had ever dealt with on behalf of appellant.

      Cook moved the sign printing operation to his home garage, but that was a

failure. Around that same time, he realized that appellees had moved out and

tried to contact them to see if he could move into their space because it was in a

different building and isolated from other tenants. Cook testified that when he

talked to Hoppenstein about leasing appellees’ property, Hoppenstein said “that if

I moved in there, he wouldn’t be able to go after Mr. Schober and that he didn’t

think that space would do me any good any more - - do me any better than the

space I was in.”      Even after Cook explained to Hoppenstein the situation

regarding the signs and how appellees’ space was better situated for his

business, Hoppenstein said that he did not think it would help and recommended

                                          8
another landlord down the street. Cook testified that he would not have needed

any improvements to appellees’ leased premises and did not request any. He

eventually had to abandon his lease with appellant; appellant sued him for the

breach and obtained a judgment for $21,000.

      Hoppenstein testified that he did not rent appellees’ leased premises to

Cook for “a number of reasons.” He remembered that Cook had approached him

about swapping his leased premises for appellees’ and that Cook had said he

wanted a small retail location for walk-in business. Hoppenstein told Cook that

he would be better off with a location closer to the street, rather than one so far

back from the street; the shopping center is in a U-shape, and appellees’ leased

premises was in the center of the U bend, farther away from the street than the

other leased premises, although facing the street.

      Hoppenstein also explained that by moving Cook to appellees’ vacated

premises, he would not be mitigating any damages because he would be moving

a tenant from one leased premises to another in the same center; thus, he would

lose money on one or the other. He would also not be able to mitigate the fumes

problem that was already occurring. Finally, Hoppenstein knew that Cook was

having financial problems, which was of concern because he would be moving

his business into an even bigger space.       Hoppenstein showed the jury rent

checks from Cook that had been returned with the notation that the bank account

on which the check was drawn had been closed.



                                        9
      Hoppenstein testified that appellant advertised vacancies by putting up for

lease signs in the vacant premises and putting one on the street near the

shopping center; he also testified that some companies list vacant space for

other brokers and that those companies call landlords periodically.               But

Hoppenstein did not say whether he responded to any of those phone calls or if

he even got any. He also testified that the center was quite large and very

difficult to lease because it was built in the 1960s and not suited for retail.

      Analysis

      The jury awarded appellant only $5,500, which is the amount of the past

due rental that had accrued before appellees vacated the premises. The jury did

not award any amounts––rental, late fees, cost of improvements to the premises

(all authorized by the lease agreement in the event of a tenant default)––for any

time after appellees vacated the premises.

      Appellees had the burden of proving the amount of damages appellant

could have avoided. Austin Hill Country Realty, 948 S.W.2d at 299; McGraw,

195 S.W.3d at 277.      But appellees failed to prove that appellant could have

immediately rented appellees’ premises and therefore avoided all damages. See

Cole Chem., 228 S.W.3d at 688. Neither Cook nor Schober testified as to when

Cook could have moved into and begun paying rent on appellees’ leased

premises. Schober said he heard Cook was interested in renting the premises

“around the time” appellees vacated. Cook testified that when he called to check

on the availability of the premises, a woman told him appellees had already

                                          10
moved out; Cook tried to call appellant’s leasing agent, who did not return his

calls. Cook then called appellant, and someone told him the leasing agent had

been fired; he left a message for Hoppenstein, who took about a week to return

the call.   Although Cook testified that he was able to immediately move into

appellees’ premises, the evidence shows that there would have been at least

some gap between appellees’ vacating the premises and Cook’s moving in

regardless of appellant’s efforts or lack thereof.

      Likewise, neither Schober nor Cook offered evidence as to how long it

would have taken appellant to find a replacement tenant for Cook’s premises,

which would have remained vacant if Cook had moved into and started paying

rent on appellees’ premises.      The minimum rental on Cook’s premises was

$2,187 per month, which appellant would not have been able to collect if Cook

had moved into appellees’ premises and started paying appellees’ minimum

rental.4 Moreover, appellant produced evidence that two of Cook’s March rent

checks had been returned because the account on which they were written was

closed.5 See MOB 90 of Tex., L.P., 2009 WL 1026603, at *3 (noting that court



      4
       Hoppenstein testified that a man named Mike Pope had moved into and
was paying rental on Cook’s premises, but appellees did not produce evidence
as to when Pope moved into those premises. When asked on cross-examination
whether it was November 1, 2007, Hoppenstein replied that he did not know;
appellees did not produce a lease or other proof of when Pope moved into those
premises.
      5
      Cook also testified that his business had been doing poorly since it had
been burglarized and because of the poor economy.

                                         11
had found no Texas law requiring landlord to work with breaching tenant to

mitigate damages).

      Appellees did bring forward evidence that Hoppenstein was not interested

in mitigating appellant’s damages; however, they failed to prove that appellant

was not entitled to any post-abandonment damages whatsoever.             See Cole

Chem., 288 S.W.3d at 688. In addition, although appellees presented evidence

that the $56,041.88 appellant spent on renovating the abandoned premises was

unreasonable––in that the amount of renovations exceeded the total minimum

rental payable for the two-year initial term of the hookah bar’s lease––appellees

failed to prove that no renovation would have been necessary.6

      In effect, appellees presented evidence that appellant unreasonably failed

to mitigate at least some of the damages it pled and proved at trial but failed to

prove that it could have avoided all damages from the time appellees vacated the

premises.7   Accordingly, we conclude and hold that the evidence is factually

insufficient to support the jury’s finding that appellant sustained only $5,500 in

damages from appellees’ breach. See Cadle Co. v. Regency Homes, Inc., 21

S.W.3d 670, 681–82 (Tex. App.––Austin 2000, pet. denied) (op. on reh’g). We

overrule appellant’s first issue but sustain appellant’s second issue.

      6
       Cook testified that he would have been willing to rent the premises as-is,
but as we have explained, appellant was not required to work with him as a
tenant because his rental checks for his own space were being returned for a
closed account. See MOB 90 of Tex., L.P., 2009 WL 1026603, at *3.
      7
       Appellees did not plead or prove the affirmative defense of waiver.

                                         12
     Instruction on Mitigation Did Not Improperly Shift Burden of Proof

      In its third issue, appellant contends that the trial court reversibly erred by

failing to charge the jury that appellees had the burden to prove whether

appellant failed to mitigate its damages as result of the breach, thus shifting the

burden of proof on the mitigation issue.8

      At the charge conference, the trial court agreed to include the following

question in the charge, “What sum of money, if any, if paid now in cash would

fairly and reasonably compensate [appellant] for its damages, if any, that resulted

from the breach of the lease?” The court also proposed the following, “Do not

include in your answer any amount that you find [appellant] could have avoided

by the exercise of reasonable care.” Appellant’s counsel objected to that part of

the charge because “[t]he standard should be whether [appellant] reasonably

mitigated [its] damages, not whether [it] exercised reasonable care.” The trial

court declined to change the question and appellant stated one more objection:

“On this question about the exercise of reasonable care, it should have a burden

of proof, that the defendants [appellees] have the burden of proof in proving that

he [appellant] didn’t exercise reasonable care. At least a general instruction.”

After argument, the trial court overruled that objection as well. The trial court

submitted the following to the jury:


      8
       Even though we will remand because of our disposition of appellant’s
second issue, we nevertheless address appellant’s third issue because it could
be raised again at a second trial.

                                        13
         QUESTION NO. 1

                What sum of money, if any, if paid now i[n] cash, would fairly
         and reasonably compensate [appellant] for its damages, if any, that
         resulted from breach of the lease?

                      Do not include in your answer any amount that you find
         [appellant] could have avoided by the exercise of reasonable care.

               Do not add any amount for interest on damages, if any.

               Answer in dollars and cents for damages, if any:

         Appellees contend that appellant failed to preserve its complaint about this

issue.     Appellant submitted its own question on damages and objected to

appellees’ proposed instruction on their affirmative defense of mitigation.

Appellees contend that to preserve its objection, appellant needed to additionally

request a replacement instruction in writing. But appellant’s objection was all that

was needed to preserve the issue as to the instruction because the trial court

submitted it. See Religious of Sacred Heart of Tex. v. City of Houston, 836

S.W.2d 606, 614 (Tex. 1992) (“Objection, however, is the proper method of

preserving complaint as to . . . an issue actually submitted, but claimed to be

defective.” (quoting Lyles v. T.E.I.A., 405 S.W.2d 725 (Tex. Civ. App.––Waco

1966, writ ref’d n.r.e.)). Thus, we hold that appellant preserved this issue for our

review.

         Rule 277 provides that “[t]he placing of the burden of proof may be

accomplished by instructions rather than by inclusion in the question.” Tex. R.

Civ. P. 277. “Thus, the Rules of Civil Procedure contemplate that the jury can be


                                          14
instructed about applying the burden of proof in two ways: [by] an admonitory

instruction or by placement of the burden through the question.”                 In re

Commitment of Beasley, No. 09-08-00371-CV, 2009 WL 3763771, at *7 (Tex.

App.––Beaumont Aug. 6, 2009, pet. denied). Here, the instructions before the

questions include the following:

      Answer “Yes” or “No” to all questions unless otherwise instructed. A
      “Yes” answer must be based upon a preponderance of the evidence
      unless otherwise instructed. If you do not find that a preponderance
      of the evidence supports a “Yes” answer, then answer “No.”
      Whenever a question requires an answer other th[a]n “Yes” or “No,”
      your answer must be based on a preponderance of the evidence
      unless otherwise instructed.

Thus, here, the trial court defined the proper burden of proof for the question in

the instructions in the charge; rule 277 requires no more. See Tex. R. Civ. P.

277; Austin Hill Country Realty, 948 S.W.2d at 299. Accordingly, we conclude

and hold that the trial court did not reversibly err by refusing to include appellant’s

requested addition to the question.

      We overrule appellant’s third issue.




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                                 Conclusion

     Having overruled appellant’s first and third issues, but also having

sustained appellant’s second issue, we reverse the trial court’s judgment and

remand for a new trial. See Cadle Co., 21 S.W.3d at 681–82.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: November 18, 2010




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