

Opinion issued December 29, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00708-CV
———————————
LONE STARR MULTI-THEATRES, LTD., Appellant
V.
MAX INTEReSTS,
LTD., Appellee

 

On Appeal from the County Court at Law No. 2
Harris County, Texas

Trial Court Case No. 882,890
 

 
O P I N I O N
Appellant,
Lone Starr Multi-Theatres, Ltd. (“Lone Starr”), challenges the trial court’s
judgment, entered after a jury trial, in favor of appellee, Max Interests, Ltd.
(“Max”), on Max’s claim against Lone Starr for breach of contract.  In its first issue, Lone Starr contends that
the evidence is legally and factually insufficient to support the jury’s
findings that it breached its lease agreement with Max and Max was damaged by
this breach.  In this issue, Lone Starr
also contends that these findings are immaterial to the extent that the jury
was “called upon” to interpret the lease. 
In its second issue, Lone Starr contends that the jury’s findings did
not provide a basis for the trial court to award Max $25,800 for lost rent and
the evidence is legally and factually insufficient to support the “implied
finding” that Max lost this amount of rent as a result of Lone Starr’s breach
of the lease.  In its third issue, Lone
Starr contends that it established as a matter of law that Max unlawfully
retained Lone Starr’s security deposit and the evidence is legally insufficient
to support the jury’s finding that Max had provided Lone Starr with a “written
description and itemized list of all deductions” from Lone Starr’s security
deposit.[1]  In its fourth, fifth, and sixth issues, Lone
Starr contends that the trial court erred in not admitting the testimony of its
witness on the cost to repair the alleged damage to the leased property, not
providing it with a credit in the judgment for its security deposit, awarding
Max attorney’s fees, and not awarding Lone Starr attorney’s fees.       
We
affirm in part, reverse in part, and remand solely for a new trial on
attorney’s fees. 
 
Factual
and Procedural Background
          In May 1998, Lone Starr
entered into a lease agreement with Championship Sports, Inc. to lease a
property in Houston, Texas to be used as an “adult entertainment center,” which
included “movie exhibitions, sales, and videotape rentals.”[2]
The lease provided that the original term would expire December 31, 2001
and  Lone Starr would become a
month-to-month tenant after this time, pay a monthly rental fee of $8,200 until
December 31, 1999, and pay a monthly rental fee of $8,600 for the remainder of
the lease term and any additional period in which it remained in the property
as a month-to-month tenant. 
          The lease imposed certain
maintenance obligations on Lone Starr. 
Specifically, the lease provided,
Throughout the term of this lease, [Lone Starr], at
[Lone Starr’s] own expense, agrees to keep the Premises and improvements
thereon in good repair and condition, and will save and hold Lessor harmless
from penalty or damage imposed by a lawful authority for the violation of any
lawful regulation, and from any loss, damage, or expense in any way arising out
of the use of said Premises by [Lone Starr]. 
Lone Starr further covenants and agrees that [it] will not commit or
allow the commission of waste on the Premises, . . . .  [Lone Starr] shall deliver the Premises free
and clean of trash and in good repair and condition at the expiration or
termination of this Lease Agreement.  
 
The lease also provided that, upon termination, Lone Starr would have
twenty days to remove its property and improvements at its own expense, “so
long as such removal is without damage to the structure or the Premises.”  Max applied, as a security deposit for the
instant lease, a $5,000 security deposit that Lone Starr had deposited pursuant
to a prior lease agreement.
          The
parties extended the lease, and, in 2005, Lone Starr became a month-to-month
tenant.  In June 2006, Max bought the
property subject to the lease between Championship Sports and Lone Starr.  On September 26, 2006, Lone Starr sent Max a
written notice that it intended to vacate the property on October 31,
2006.  And, on October 20, 2006, Lone
Starr sent Max a second notice, informing Max that it would vacate the property
by November 1, 2006 and, pursuant to the terms of the lease, it would have an
additional twenty days to remove its property and improvements.  
          On November 1, 2006, Max
sent Lone Starr a letter stating that Max would begin its inspection of the
property.  On or about November 14, 2006,
John Cibik, on behalf of Max, inspected and took photographs of the
property.  On November 15, 2006, David
Greenberg, Max’s general partner, sent to Lone Starr an e-mail informing Lone
Starr that it had left the property in “terrible condition with extensive
damage” and requesting that Lone Starr clean and repair the property.  Greenberg attached to his e-mail photographs
from Cibik’s visit to the property.  On
November 27, 2006, Greenberg sent to Lone Starr a letter stating that Lone
Starr had left the property “in poor condition with needed repairs and
maintenance.”  He demanded that Lone
Starr perform the required repairs and maintenance, informed Lone Starr that if
it did not repair the property Max would make the repairs at Lone Starr’s expense
with Lone Starr’s security deposit, and noted that Max would hold Lone Starr
responsible for any excess amount. 
Greenberg further warned Lone Starr that its continued delays in
repairing the property were preventing Max from leasing the property, and he
stated that Max would hold Lone Starr accountable for any damages incurred.
          On December 11, 2006, Max
sent to Lone Starr a letter, demanding that Lone Starr pay Max $56,008.20, representing
$26,608.20 in costs for “repairs/damages” and $34,400 for three-month’s rent
from November 2006 to February 2007, less Lone Starr’s $5,000 security
deposit.  Max attached to this letter a
document entitled, “Commercial Construction Cost Schedule,” in which Cibik
itemized costs for repairs or work that Max contended Lone Starr was obligated
to perform under the lease.  On December
21, 2006, Lone Starr responded and sent Max a letter, denying the allegation
that it had failed to surrender the property in good condition, asserting that
Max had acted in bad faith by not returning its security deposit or providing
it with a written description and itemized list of deductions for repairs, and
demanding the return of its security deposit. 

          Max filed suit, alleging
that Lone Starr had breached the lease by failing to return the property in
“good condition” and seeking $56,008.20 in damages as set forth in its demand
letter as well as its attorney’s fees. 
Lone Starr filed an answer, generally denying Max’s allegations and alleging
that Max had unlawfully retained its security deposit to cover normal wear and
tear and failed to provide Lone Starr with a written description and itemized
list of any deductions from the deposit. 
Lone Starr contended, thus, that Max had forfeited its right to withhold
the security deposit or bring suit for damages.   Lone Starr also asserted that Max’s breaches
of the lease agreement precluded it from bringing suit.
          At trial, both parties
presented conflicting evidence concerning the condition of the property, the
maintenance and repairs performed by Lone Starr during the lease and at the
time it terminated the lease, the scope of repairs and cleaning, and the amount
of costs necessary to return the property to “good condition” in compliance
with the lease.  The jury found that Lone
Starr had failed to comply with the lease; three months was a “reasonable
period of time in which” Lone Starr could have made “required repairs, if any,
to bring the property into good condition and repair”; Max was entitled to
recover $22,058.20 for its damages for the “reasonable and necessary cost to
repair and put the lease space in good condition”[3];
$8,600 was the “fair market monthly rental value of the property” in November
2006 at the time Lone Starr terminated the lease; and Max had provided Lone
Starr with a “written description and itemized list of all deductions” from
Lone Starr’s security deposit.[4]  The jury also awarded Max $19,230.13 for its
attorney’s fees for trial, as well as its appellate attorney’s fees.  In its judgment, the trial court awarded Max damages
in the amount of $47,858.20 and entered a take-nothing judgment against Lone
Starr on its counterclaim.  
Breach
of Contract
          In its first issue, Lone Starr argues
that the jury’s findings that Lone Starr breached its lease agreement with Max
and the breach damaged Max were, “to the extent that these questions called
upon the jury to interpret the lease,” immaterial because the “[c]onstruction
of a written instrument is a question of law.”  
Lone Starr further argues that the evidence is legally and factually
insufficient to support the jury’s findings that Lone Starr breached the lease
and Max was entitled to recover
$22,058.20 for its damages for the “reasonable and necessary cost to repair and
put the lease space in good condition” because the lease did not make it an
“insurer of the condition” of the property, or responsible for deterioration or
“ordinary wear and tear,” and Max offered no evidence of an estimate to repair
the “actual” damage to the property in order to return the property to “good
condition.”  
          As a preliminary matter, we note that
although Lone Starr has included a “materiality” argument in its first issue,
it has not demonstrated that jury question number one, which asked whether Lone
Starr had breached the lease, was immaterial. 
Question number one was material to Max’s claim that Lone Starr breached
the lease.  Similarly, the challenged
portion of jury question number three, which asked for the “reasonable and
necessary cost to repair and to put the lease space in good condition,” was material,
as this was the central disputed matter at trial.  Although Lone Starr argues that it could not,
as a matter of law, be held responsible under the lease for “ordinary wear and
tear,” this matter is not disputed.  In jury
question number three, the trial court instructed the jury that, in calculating
the amount to compensate Max to return the property to “good condition,” it
could not include amounts “for repairs that result from normal wear and tear.”  The trial court further instructed the jury that
“normal wear and tear” meant “deterioration” from the intended use of the
property, “including breakage or malfunction due to age or deteriorated
condition.”  The language used by the
trial court in the instructions accompanying jury question number three
comports with Lone Starr’s arguments made on appeal regarding the proper
construction of the lease, and Max does not challenge these accompanying
instructions.[5]  
          We also note that, during the charge
conference, Lone Starr objected to jury question number one only on sufficiency
grounds.  In regard to jury question
number three, although Lone Starr objected to the portion of the question
concerning the monthly rental value of the property (discussed below) and
asserted that the question presented “an improper frame of damages,” Lone Starr
did not plainly object to asking the jury to determine an amount of money
necessary to put the property in good condition.  We conclude that Lone Starr has failed to
demonstrate that the challenged questions were immaterial, and we will consider
the sufficiency of the evidence to support the jury’s findings to questions one
and three.  See Osterberg v. Peca,
12 S.W.3d 31, 55 (Tex. 2000) (assessing legal sufficiency of evidence according
to instructions given by trial court to jury when there is
no objection to court’s charge).  
          In conducting our legal-sufficiency
review, we will sustain a legal sufficiency or “no-evidence” challenge if the
record shows one of the following: (1) a complete absence of evidence of a vital
fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes
conclusively the opposite of the vital fact. 
City of Keller v. Wilson, 168
S.W.3d 802, 810 (Tex. 2005).  We “must
consider evidence in the light most favorable to the verdict, and indulge every
reasonable inference that would support it.” 
Id. at 822.  If there is more than a scintilla of evidence
to support the challenged finding, we must uphold it.  Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d
41, 48 (Tex. 1998).  “‘[W]hen the
evidence offered to prove a vital fact is so weak as to do no more than create
a mere surmise or suspicion of its existence, the evidence is no more than a
scintilla and, in legal effect, is no evidence.’”  Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d
61, 63 (Tex. 1983)).  However, if the
evidence at trial would enable reasonable and fair-minded jurors to differ in
their conclusions, then jurors must be allowed to do so. Keller, 168 S.W.3d at 822; see
also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).  “A reviewing court cannot substitute its
judgment for that of the trier-of-fact, so long as the evidence falls within
this zone of reasonable disagreement.”  Keller, 168 S.W.3d at 822.
          In conducting a factual-sufficiency
review, we must consider, weigh, and examine all of the evidence that supports
or contradicts the jury’s determination. Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); London v. London, 192 S.W.3d 6, 14–15
(Tex. App.—Houston [14th Dist.] 2005, pet. denied).  We may set aside the verdict only if the
evidence that supports the jury’s finding is so contrary to the overwhelming
weight of the evidence as to be clearly wrong or unjust.  Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986); Nip
v. Checkpoint Sys., Inc., 154 S.W.3d 767, 769 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). 
          In its brief, Lone Starr agrees that,
at trial, it “did not contest that there was damage to the sheet rock, damage
to the ceiling, and other minor damage to the building.”  Although Lone Starr has not directly conceded
the sufficiency of the evidence to support the jury’s finding that it breached
the lease, Lone Starr’s primary substantive challenge is to the sufficiency of
the evidence to support the jury’s findings as to the amount of repair costs
necessary to return the property in good condition as required by the
lease.  Lone Starr complains that Max
“never provided an estimate of the cost to repair” the sheet rock, ceiling
damage, and other minor damage, but provided evidence only of the costs to perform the extensive work
detailed in the schedule prepared by Cibik. 
Lone Starr asserts that this schedule did not represent the costs
necessary to return the property in “good repair and condition,” but
represented the costs of a “major overhaul” of the property.
          At trial, Max introduced a
significant number of photographs into evidence depicting damage to the
property, and it presented testimony that these photographs depicted the
condition of the property after Lone Starr had vacated it.  Also, William Becker, Lone Starr’s general
partner, testified that the lease obligated Lone Starr to maintain the property
throughout the lease and to “clean the premises and leave it in a presentable
condition” or “good condition.”  He
agreed that Lone Starr was obligated to maintain the property by painting it
and fixing the air conditioner, electrical system, and plumbing system.  When reviewing Max’s photographs, Becker
agreed that they reflected that the property was not in good condition, the
storage area of the property needed to be cleaned, there was trash left in the
property, the sheetrock had not been repaired, and there was glue remaining on
the sheetrock from where plexiglass and a neon sign had been removed.   Becker stated that Lone Starr left “any type
of painting or tape or texture” to be done by the next tenant, and he asserted
that many of the photographs depicted normal wear and tear and did not depict
the way that Lone Starr had left the property. 
He testified that Lone Starr, in vacating the property,  had swept the property, removed debris, and
fixed a broken banister.
          Cibik, Max’s contractor,
testified that a tenant leaving a property in good condition would need to
repair sheetrock, clean floors, and make other repairs.  When looking at Max’s photographs, Cibik
testified that they depicted a property that had not been returned in good
condition, the floor was “soft in some areas” and was in “disarray,” the
flooring was not kept in good repair, the ceiling acoustic tiles were not in
good repair, and the ceiling was “missing in many spots” and “rusted in other
areas.”  It looked to Cibik as if “not a
lot” of maintenance had been performed over the course of the 18-year
lease.  He noted that the plumbing system
was not kept in good repair, the water cooler was either “nonexistent or
nonfunctional,” some duct work would have been necessary because it was “just
in bad shape,” there were electrical lines that were loose and would need to be
capped, and an “electrician would have to come in and rerun the conduit to make
it function properly.”  He also noted that
there was some “patching and some tape and float” necessary for drywall repair,
a “couple of the interior doors were splintered” or were not in good condition
and needed to be replaced, there were door handles missing, and the tile on the
bathroom walls “needed [to be] Cloroxed and cleaned and scraped and
re-grouted.”  Moreover, a bathroom
countertop was missing or cracked and needed to be replaced, and the interior
walls and doors needed repainting.  Cibik
explained that there had been leaks “coming down” into the property on the
masonry and cinderblocks, which resulted in stains, and the leaks indicated
that Lone Starr had not provided adequate maintenance.  Cibik specifically noted that there was water
damage that had ruined a stud and appeared to cause mold.  He explained that a tenant obligated to keep
a property in good condition would be required to make “maintenance repairs”
throughout the term of the lease, and he opined that Lone Starr had failed to
keep the property in good condition and repair. 
Cibik noted that when he returned to the property in December 2006, the
condition of the property looked “substantially similar” to the conditions
depicted in Max’s photographs. 
          David Greenberg, Max’s
general partner, testified that Max had given Lone Starr “every opportunity” to
repair the property, but it had refused to do so, and the property was in
“horrid condition.”  Greenberg denied
Lone Starr’s claim that the damage to the property could be attributed to
normal wear and tear, and he asserted that the condition of the property was
due, in part, to “neglect” and lack of maintenance, which he noted was the
tenant’s responsibility.
          In regard to the amount of
Max’s damages, Cibik testified that his construction schedule represented the
costs necessary to put the property in good condition as of December 2006.  His schedule contained an itemized list of
repairs with corresponding costs for each proposed repair.  Lone Starr emphasizes that Cibik, during his
testimony, stated that his schedule accounted for returning the property to
“vanilla box” condition, which he explained is “simply four walls” so that “the
next tenant would not really have to spend a lot of money.”  Lone Starr asserts that even Cibik agreed
that many of the proposed repairs listed in his schedule were for damages
caused by “general wear and tear.”  
          Additonally, Lone Starr,
citing Cibik’s testimony, attacks the sufficiency of the evidence to support
the necessity of each of the repair items and the corresponding dollar figures
listed on the schedule for each of these items. 
For example, in regard to the cost for repairing the flooring and
ceiling, Lone Starr notes that Cibik agreed that ceiling tiles “need to be
replaced periodically.”  And Lone Starr
asserts that Cibik provided no evidence of damage “more than the ordinary wear
and tear [caused by] 18 years of occupancy.” 
Lone Starr complains that the lease did not obligate it to demolish the
floor and ceiling as indicated in Cibik’s schedule.  In regard to the cost for repairing the
plumbing, also included in Cibik’s schedule, Lone Starr complains that Cibik
did not provide a clear explanation for the estimated costs, and it notes that even
Cibik agreed that the pipes in the property exhibited general wear and tear.
          Through its
cross-examination of Cibik, Lone Starr obtained potentially conflicting
testimony about the scope of repairs necessary to return the property to good
condition.  As noted above, Cibik agreed,
in response to questions concerning several of the items in the schedule, that
many of the proposed repairs were for damage that could have been caused by
wear and tear.  However, Cibik also
testified that all of the repairs included in the construction schedule were
necessary to return the property to good repair.   On redirect examination, Cibik made some
effort to clarify his “ordinary wear and tear testimony” by explaining that the
damage to the property was attributable both to longstanding deferred
maintenance and damage to the property at the time Lone Starr vacated it.    
          In regard to the
sufficiency of the evidence to support the jury’s award, Cibik stated that the
amounts identified in his construction schedule represented the amount of costs
necessary to return the property to good condition.  And, although Lone Starr presented some conflicting
testimony as to whether all of the repairs identified in the schedule were
necessary due to damage caused by Lone Starr or were necessary in order to
return the property to good condition, the testimony of Cibik, Greenberg, and
Becker support an implied finding that Lone Starr caused the damages and such
repairs were necessary to return the property to good condition.  Moreover, to the extent that Lone Starr may
have successfully attacked the sufficiency of the evidence to support certain
portions of the construction schedule, the jury did not award the full amounts
stated in the schedule, but rather $22,058.20, four thousand dollars less than
the amount stated by Cibik.  
          We hold that the evidence
is legally sufficient to support the jury’s findings that Lone Starr breached
the lease agreement and Max is entitled to recover $22,058.20 for the “reasonable and necessary cost to
repair and put the lease space in good condition.”  See
Siegler v. Robinson, 600 S.W.2d 382, 386 (Tex. Civ. App.—Houston [1st
Dist.] 1980, writ ref’d n.r.e.) (stating that, in cases where there are no
permanent injuries to premises, “the landlord is entitled to the reasonable
cost of repairs as the proper measure of damages if he waits until after the
term of the lease has expired”).  We
further hold that the jury’s findings that Lone Starr breached the lease and
that Max is entitled to recover $22,058.20 for its damages are not so
contrary to the overwhelming weight of the evidence so as to be clearly wrong
or unjust and, thus, the evidence is factually sufficient support the jury’s findings.  See id.
at 385 (holding that factually
sufficient evidence supported jury finding that lessees “failed to return the
premises in as good order and condition, natural deterioration and damages by
the elements only excepted, as when they first took possession”).
          We overrule Lone Starr’s
first issue.
Lost
Rent
          In its second issue, Lone Starr argues
that the jury’s findings did not support the trial court’s award of $25,800 to
Max for lost rent because “the trial court never asked the jury the controlling
question of what amount of rent, if any, [Max] lost as a result of the breach
of lease.”  Rather, Lone Starr asserts,
the trial court submitted 
“two evidentiary questions that were arguably relevant to the question of lost
rent” and “then assumed that, had the property been left in ‘good’ condition,
[Max] would have immediately rented the property at $8,600” per month and was
entitled to this amount of rent for a three-month period.  Lone Starr contends that, if the questions
pertaining to lost rent were “immaterial,” we should render a take-nothing
judgment on this portion or damages,. 
Alternatively, Lone Starr argues that if the questions were “defective,”
we should remand the case for a new trial. 
Lone Starr further argues that the evidence is legally and factually
insufficient to support the “implied finding” that Max lost the amount of rent
awarded by the trial court as a result of Lone Starr’s breach of the
lease.  
          The trial court apparently used the
jury’s answers to two questions to calculate what it determined to be an
appropriate amount of lost rent attributable to Lone Starr’s breach.  First, in question number two, the trial court
asked the jury to make a finding on the “reasonable period of time in which”
Max could have made “the required repairs, if any, to bring the property into
good condition and repair.”  Second, in a
portion of question number three that was not predicated on any particular
finding, the trial court asked the jury to determine the “fair market monthly
rental value of the property in November 2006,” which was the approximate date
on which Lone Starr had terminated the lease and vacated the property.  
          Lone Starr objected to question number
two on the ground that it did not concern “an ultimate issue in the case” and
an answer to the question would not support a judgment for Max.  Lone Starr further objected that the question
did not “establish any elements of any cause of action,” the issue “as framed
submit[ted] an improper measure of damages,” and the question was “vague,
confusing, and misleading.”  Lone Starr
objected to the “fair market monthly rental value” portion of question number
three on the grounds that it submitted “an improper frame of damage,” was
“vague, confusing, and misleading,” required the jury “to find damages on the
fair monthly rental value of the property,” and was “improperly included in
this question.”  Lone Starr asserted that
the matter of lost rent could be submitted “as a separate question.”  The trial court overruled Lone Starr’s
objections.  The jury found, in response
to question number two, that three months was a reasonable period of time to
make repairs and, in response to question number three, that $8,600 was the
fair market monthly rental value of the property.   The trial court, in its judgment, awarded
Max $25,800 for lost rent, apparently multiplying the jury finding of the fair
market monthly rental value and the jury finding on the number of months in
which Max could have reasonably made the repairs to the property in order to
calculate its award.        
          A trial court has wide discretion in
submitting jury questions as well as instructions and definitions.  Bank
One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 431 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied).  This discretion
is subject only to the requirement that the questions submitted must: (1)
control the disposition of the case; (2) be raised by the pleadings and the
evidence; and (3) properly submit the disputed issues for the jury’s
determination.  Tex. R. Civ. P. 277, 278; Moore
v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App.—Tyler 2006, pet. denied); Lee-Wright, Inc. v. Hall, 840 S.W.2d
572, 577 (Tex. App.—Houston [1st Dist.] 1992, no writ).  The trial court’s judgment will not be
reversed for charge error unless the error was harmful, i.e., it probably
caused the rendition of an improper verdict or probably prevented the
petitioner from properly presenting the case to the appellate courts.  Tex.
R. App. P. 44.1; see also Columbia Rio Grande Healthcare, L.P. v.
Hawley, 284 S.W.3d 851, 856 (Tex. 2009).  Charge error is generally
considered harmful if it relates to a contested, critical issue.  Columbia
Rio Grande Healthcare, L.P., 284 S.W.3d at 856.  If a question submitted on a
plaintiff’s claim is “defective,” the appropriate remedy is to remand for a new
trial; however, if the question submitted is “immaterial,” the appropriate
remedy is to render judgment.  Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 44 (Tex. 2007); Torrington Co. v.
Stutzman, 46 S.W.3d 829, 839–41 (Tex. 2000).
          Loss
of rentals may constitute an appropriate measure of damages for the temporary
loss of the use of land.  Z.A.O., Inc. v. Yarbrough Drive Center Joint
Venture, 50 S.W.3d 531, 546–47 (Tex. App.—El Paso 2001, no pet.).  Here, neither question number two nor three
asked the jury to determine the amount of lost rentals, if any, that Max was
entitled to recover as a result of Lone Starr’s breach.  Question number two simply asked the jury to
find a reasonable period of time in which Max could have made repairs to bring
the property into good condition and repair.  Question number three, which was the damages
question, instructed the jury to consider “the following elements of damages,
and none other,” but then only listed reasonable and necessary repair costs as
an element of damages.  Although this
question subsequently asked the jury to find “the fair market monthly rental
value” of the property in November 2006, it in no way asked the jury to determine
whether this amount, or any other amount, represented an amount of lost rentals
that Max was entitled to recover as a result of Lone Starr’s breach.  We hold that the trial court abused its
discretion in submitting to the jury question number two and the portion of
question number three related to the fair market monthly rental value of the
property because neither of these questions controlled the disposition of the
case.
          We further hold that question number
two and the challenged portion of question number three were immaterial, rather
than merely defective.  The answers
provided by the jury did not in any way support the trial court’s award of
damages to Max for its alleged lost rentals. 
As noted above, the jury was not asked to consider whether Lone Starr’s
breach caused Max to sustain damages for lost rent.  Because these questions were immaterial,
rather than merely defective, the appropriate remedy is to render judgment that
Max take nothing in its claim for damages for lost rentals.   See
Stutzman, 46 S.W.3d at 839–41.
          We sustain Lone Starr’s second issue.        
 
 
Lone Starr’s Counterclaim
          In its third issue, Lone Starr argues
that it, as a matter of law, was entitled to relief on its counterclaim against
Max because Max had failed to provide Lone Starr with a “written description
and itemized list of all deductions” from Lone Starr’s security deposit.  See
Tex. Prop. Code Ann. § 93.006
(Vernon 2007).
          Section 93.006 provides,
(a)     Before
returning a security deposit, the landlord may deduct from the deposit damages
and charges for which the tenant is legally liable under the lease or damages
and charges that result from a breach of the lease.
 
(b)     The landlord
may not retain any portion of a security deposit to cover normal wear and tear.
In this subsection, “normal wear and tear” means deterioration that results
from the intended use of the commercial premises, including breakage or
malfunction due to age or deteriorated condition, but the term does not include
deterioration that results from negligence, carelessness, accident, or abuse of
the premises, equipment, or chattels by the tenant or by a guest or invitee of
the tenant.
 
(c)      If the
landlord retains all or part of a security deposit under this section, the
landlord shall give to the tenant the balance of the security deposit, if any,
together with a written description and itemized list of all deductions. The
landlord is not required to give the tenant a description and itemized list of
deductions if:
 
(1)     the tenant owes
rent when the tenant surrenders possession of the premises; and 
 
(2)     no controversy
exists concerning the amount of rent owed.
 
Id.  
          Texas Property Code section 93.011
provides,
(a)     A landlord who
in bad faith retains a security deposit in violation of this chapter is liable
for an amount equal to the sum of $100, three times the portion of the deposit
wrongfully withheld, and the tenant’s reasonable attorney’s fees incurred in a
suit to recover the deposit after the period prescribed for returning the
deposit expires.
 
(b)     A landlord who
in bad faith does not provide a written description and itemized list of
damages and charges in violation of this chapter:
 
(1)     forfeits the
right to withhold any portion of the security deposit or to bring suit against
the tenant for damages to the premises; and 
 
(2)     is liable for
the tenant’s reasonable attorney’s fees in a 
suit to recover the deposit. 
 
(c)      In a suit
brought by a tenant under this chapter, the landlord has the burden of proving
that the retention of any portion of the security deposit was reasonable.
 
(d)     A landlord who
fails to return a security deposit or to provide a written description and
itemized list of deductions on or before the 60th day after the date the tenant
surrenders possession is presumed to have acted in bad faith.
 
Id.
§ 93.011 (Vernon 2007).  
          The evidence supports a
finding that Lone Starr vacated the property in mid-November 2006 and did not
return to the property or make further repairs. 
On November 14, 2006, Cibik inspected the property and photographed the damage
to it.  Several witnesses testified that
this damage exceeded normal wear and tear. 
On November 15, 2006, David Greenberg, Max’s general partner, sent to Lone
Starr an e-mail informing Lone Starr that it had left the property in “terrible
condition with extensive damage.” Greenberg attached to the e-mail several
photographs of the damage and instructed Lone Starr to clean and repair the
property to avoid violating the lease.  On
November 27, 2006, he sent to Lone Starr a letter, stating that Lone Starr had
left the property “in poor condition with needed repairs and maintenance,” demanding
that Lone Starr repair the property and return it in good condition, and noting
that Max would retain the security deposit if Lone Starr did not comply.  On December 11, 2006, Max sent to Lone Starr
a letter with an attached “cost/bid for the repairs/damages,” identifying $26,608.20
in “repairs/damages” and setting forth an itemized list of repairs.  
          Lone Starr asserts that,
“as a matter of law,” the construction schedule is not sufficiently detailed
and “[m]erely naming a thing does not describe it.”  Lone Starr also cites Greenberg’s testimony
in which he refused to acknowledge that a landlord has a duty to “itemize and
specify to tenant the damages to the property.” 
However, viewing the evidence in the light most favorable to the
verdict, we conclude that the jury could have reasonably found that the
schedule provided by Max sufficiently described each item within the property
that was not in “good condition” and the photographs attached to the original
e-mail provided further detail.  Lone
Starr did not agree with Max that the items listed in the schedule were in poor
condition, and it asserted that many of the photographs depicted only “normal
wear and tear.”  However, the jury could
have reasonably found that Max, by providing the written and itemized schedule,
furnished the necessary information in compliance with section 93.006(c).  Accordingly, we hold that the evidence is legally sufficient to support the jury’s
finding that Max did provide Lone Starr with a written description and itemized
list explaining why Max had retained Lone Starr’s security deposit.  See id.  Because legally sufficient evidence supports
the jury’s finding, no presumption of bad faith arose under the Property Code.  See id.
§ 93.011.
          To the extent that Lone
Starr suggests in its appellate briefing that it was entitled to the recovery
of damages under the Texas Property Code, we note that Lone Starr, at trial,
affirmatively represented to the trial court that it was not seeking
damages.  Instead, Lone Starr only argued
that Max had forfeited its right to withhold any
portion of the security deposit or to bring suit against it for damages to the
premises.  See id. § 93.011(b).
          We overrule Lone Starr’s fourth issue.
Admission of Testimony
          In its fourth issue, Lone Starr argues
that the trial court erred in not admitting into evidence the testimony of
William Becker, Lone Starr’s general partner, on the cost to repair the alleged
damage to the property because this was Lone Starr’s “only evidence” on the matter
and, “[o]nce the jury determined that Lone Starr breached the lease, [it] had
nothing except Cibik’s testimony from which to assess cost of repair.”
          We review a trial court’s admission or
exclusion of evidence for an abuse of discretion.  In re
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). 
To obtain reversal of a judgment based on error in the admission or
exclusion of evidence, an appellant must show that the trial court’s ruling was
in error and the error (1) probably caused the rendition of an improper judgment
or (2) probably prevented the appellant from properly presenting the case to
the court of appeals.  Tex. R. App. P. 44.1; Interstate Northborough P’ship v. State,
66 S.W.3d 213, 220 (Tex. 2001).  In
determining if the excluded evidence probably resulted in the rendition of an
improper judgment, we review the entire record, and, “[t]ypically, a successful
challenge to a trial court’s evidentiary rulings requires the complaining party
to demonstrate that the judgment turns on the particular evidence excluded or
admitted.”  Interstate Northborough P’ship, 66 S.W.3d at 220.  Ordinarily, we will not reverse a judgment
because a trial court erroneously excluded evidence when the evidence in
question is cumulative and not controlling on a material issue dispositive to
the case.  Id.  
          At trial, Lone Starr attempted to
elicit testimony from Becker regarding his opinion of the condition of the
property and the repair costs during the following exchange:
          [Lone Starr’s counsel]:  You’ve looked at all these pictures?
 
          [Becker]:                        Yes, sir.
 
          [Lone Starr’s counsel]:  You’ve seen the sheetrock?
 
          [Becker]:                        Yes, sir.
 
          [Lone Starr’s counsel]:  What’s your opinion of the sheetrock?
 
[Max’s counsel]:            Objection,
Your Honor. If we’re going to go into costs or things like that –
 
[Trial court]:                  Sustained
in so far as –
 
[Max’s counsel]:            He
hasn’t been designated as an expert or his testimony disclosed in this regard.
 
[Lone Starr’s counsel]:  Well,
this is his own property.  I mean, he
was—
 
[Trial court]:                  Did
you designate him?
 
[Lone Starr’s counsel]:  As
an expert?
 
. . . .
 
[Trial court]:                  No
expert testimony if he wasn’t designated, counsel.
 
[Lone Starr’s counsel]:  Well,
I’m offering him, Your Honor, just as his understanding of the damages to the
property and what it would take to put it in good repair.
 
[Trial court]:                  Nope.
 
Lone Starr
subsequently made the following offer of proof:
 [Lone Starr’s
counsel]:  And—okay. What Mr. Becker is
going to testify to is the fact that the water cooler would have been repaired
at an approximate cost of $300, that to have repainted the portions of the
premises that needed painting would have cost about $1,500, that the other
repairs probably could have been effectuated for, in the neighborhood of a
couple thousand dollars, but that the $5,000 dollar security deposit would have
covered all the cost of repairs to have put the property in good repair and
condition based upon his observation of the property and the photos and evidence
presented in this case.
 
          Max
responded that Lone Starr, in its responses to the request for disclosure,
represented that Becker was “a principal of the defendant, not an owner,” and
neither Lone Starr’s disclosure nor “any of the pleadings make reference to any
sort of offset that [Lone Starr] would be providing with specific amounts of
damages for each of the items that Mr. Becker allegedly was going to testify
to.” Max also complained that any “offsets” would have to have been calculated
and provided to it in the disclosures. 
On appeal, Max further complains that Becker was called to testify at
trial as the general partner of an adult video store, “not as a construction
expert with knowledge of damages to the premises and the cost to put it in good
repair.”  Max also asserts that Lone
Starr failed to establish that Becker had “any familiarity or personal
knowledge of the damage or cost of repairs,” Lone Starr did not even designate
Becker as a lay witness with knowledge regarding the costs to repair,” and the
bill of exception “fails to establish what personal knowledge, if any, formed
the basis of” Becker’s testimony.  
          There are two types of offers to
preserve error: the offer of proof (formerly referred to as an informal bill of
exception) and the formal bill of exception. 
Fletcher v. Minnesota Min. and
Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied); see Tex. R. Evid. 103; Tex.
R. App. P. 33.2. To challenge the exclusion of evidence by a trial court
on appeal, a complaining party must present the excluded evidence to the trial
court by offer of proof.  Fletcher, 57 S.W.3d at 606.  The primary purpose of the offer of proof is
to enable the reviewing court to determine whether the exclusion was erroneous
and, if so, whether it was harmful.  Id. at 608.  Therefore, an offer of proof must be specific
enough that the reviewing court can determine admissibility.  See
Tex. R. Evid. 103(a)(2); In the Interest of N.R.C., 94 S.W.3d
799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
          Here, during the initial exchange,
Lone Starr’s counsel explained that he sought to elicit from Becker testimony
regarding the damage to the property and “what it would take to put it in good
repair,” i.e., the costs to comply with the 
lease.  Max’s counsel objected,
noting that Lone Starr had not designated Becker as an expert in this regard nor
disclosed that these matters fell within the scope of his testimony.  It is undisputed that Becker was not
designated as an expert.  During the offer
of proof, Lone Starr’s counsel represented that Becker would have testified to
the repair cost for the water cooler, the painting costs, and the overall cost
for the other repairs in order to return the property to good repair and
condition, but Lone Starr’s counsel provided no explanation as to the basis for
any such opinions or whether Becker had personal knowledge on the cost of the
actual damages or repairs.
          Although a lay witness with personal
knowledge may be qualified to testify regarding the costs of repair, here, there
is nothing in the bill of exception that would have indicated to the trial
court that Becker had personal knowledge of the specific costs to repair the
water cooler, paint the interior of the property, and complete other needed
repairs.  See SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc., 168
S.W.3d 296, 302 (Tex. App.—Dallas 2005, pet. denied) (holding trial court did
not err in admitting lay witness testimony on value of property and costs of
repair from witness who testified that he investigated costs and obtained
bids); Coker v. Burghardt, 833 S.W.2d
306, 310–11 (Tex. App.—Dallas 1992, writ denied) (holding that trial court did
not abuse discretion in admitting testimony of car owner on reasonable cost of
repairs when car owner testified that he had familiarized himself with cost of
repairs by visiting area car repair shops). 

          In its bill, Lone Starr did not
present any specific information indicating that Becker had any basis for his
opinions on the costs to repair the property, either as an expert or a lay
witness.  Much of Becker’s testimony
indicates that, although he was presented as Lone Starr’s corporate
representative at trial, he had very little involvement with the property.  In response to Max’s questioning, Becker, on
multiple occasions, disclaimed personal knowledge of matters pertaining to the
property. He noted that he had worked out of Dallas and had not personally
participated in the repairs at the facility. 
He, in response to a question about whether Lone Starr personnel had
returned to the property in November 2006 to effectuate repairs, also stated that
he “was not present” and did not “know what Lone Starr facilities managers on
site here in Houston did.”  He agreed on
several occasions that he did not have “personal knowledge” about the work done
by Lone Starr at the property.  Based
upon the record before us, we hold that the trial court did not abuse its
discretion in excluding Becker’s challenged testimony.
          We overrule Lone Starr’s fourth issue.
Security Deposit
          In its fifth issue, Lone Starr argues
that the trial court erred in not providing it with a credit in the judgment
for the $5,000 security deposit it had paid to Max because Max did not dispute
that Lone Starr had paid it this amount and Max retained the deposit.
          The right to an offset is an
affirmative defense, and the burden of pleading offset and of proving facts
necessary to support it are on the party making the assertion.  SAS
& Assocs., Inc., 168 S.W.3d at 301; Tex.
R. Civ. P. 94.   Lone Starr has waived this issue because it
did not plead the affirmative defense of offset, nor did it make any objections
to the jury charge regarding this matter. 
Columbia Med. Ctr. of Las Colinas
v. Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.—Fort Worth 2003, pet.
denied).   It is also not clear, based upon the record
before us, as to whether the jury may have considered the deposit in its
findings. In sum, Lone Starr did not raise any timely objection on the issue of
its security deposit.  Tex. R. App. P. 33.1.  Accordingly, we hold that the trial court did
not err in not including an offset in its judgment.  
          We overrule Lone Starr’s fifth issue.
Attorney’s Fees
          In its sixth issue, Lone Starr argues
that the trial court erred in awarding Max attorney’s fees because the underlying
judgment should be reversed or, alternatively, that a reduction in the amount
of damages awarded requires a retrial of the attorney’s fees claim. Lone Starr
also argues that the trial court erred in not awarding it attorney’s fees
because, if successful on appeal, it would be entitled to its attorney’s fees
both under the Texas Property Code and the lease.
          In its judgment, the trial court awarded Max damages in the amount of
$47,858.20 and entered a take-nothing judgment against Lone Starr on its counterclaims.
The damages awarded to Max consisted of $22,058.20 for the “reasonable and
necessary cost to repair and put the lease space in good condition” and another
$25,800 for lost rent, which the trial court calculated by multiplying
the jury finding of the fair market monthly rental value and the jury finding
on the number of months in which Max could have reasonably made the repairs to
the property.  As explained above, we are
affirming the portion of the judgment awarding damages for repair costs, but we
are reversing the portion of the judgment awarding damages for lost rent.  We are also rendering judgment that Max
recover nothing on its claim for lost-rent damages.
          An award of attorney’s fees must be
supported by evidence that the fees were both reasonable and necessary.  Powell
Elec. Sys., Inc. v. Hewlett Packard Co., No. 01-09-00876-CV, 2011 WL
1598758, at *12 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.). “Generally,
the determination of reasonable attorney’s fees is a question of fact and the
testimony of an interested witness, such as a party to the suit, though not
contradicted, does no more than raise a fact issue to be determined by the
jury.”  Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).  The trier of fact can consider the amount in
controversy, the time and effort required, and the expertise of counsel in
arriving at a reasonable amount of attorney’s fees.  Powell
Elec. Sys., Inc., 2011 WL 1598758, at *12. 
Here, we are reducing the damages awarded in the trial court’s judgment
to Max by over 50%.  When an amount of
damages is meaningfully reduced, the issue of attorney’s fees should ordinarily
be retried unless we are “reasonably certain that the jury was not
significantly influenced” by the erroneous damage award.  Young
v. Qualls, 223 S.W.3d 312, 314–15 (Tex. 2007); Bossier Chrysler–Dodge II, Inc. v. Rauschenberg, 238 S.W.3d 376,
376 (Tex. 2007); Barker v. Eckman,
213 S.W.3d 306, 314 (Tex. 2006); Powell
Elec. Sys., Inc., 2011 WL 1598758, at *13. 

          We recognize that this case is
distinguishable from those cited above in that, although we are reducing the
actual damages awarded by the trial court in its judgment, the jury was not
specifically asked to award the amount of lost-rent damages that we are
reversing.  Nevertheless, because of the
structure of the charge, and the evidence presented at trial concerning lost
rent, we cannot be reasonably certain that the jury was not affected by the
issue of alleged damages for lost rent. 
Even though there were no material questions ultimately submitted on the
element of lost rent, the parties certainly discussed this matter at trial and
the jury made findings on the fair market value of rent.  Accordingly, the case must be remanded to the
trial court for a new trial on attorney’s fees. 
See Bossier Chrysler–Dodge II, Inc., 238 S.W.3d at 376.[6]    
          We sustain the portion of Lone Starr’s
sixth issue in which it argues that a reduction in the amount of damages awarded
to Max requires a retrial of the attorney’s fees claim.   We overrule the remaining portions of Lone
Starr’s sixth issue.
          Having overruled all of Lone Starr’s
issues in regard to its cross claim, we hold that the trial court did not err
in awarding attorney’s fees to Max and in not awarding attorney’s fees to Lone
Starr.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Conclusion
          We reverse the portion of the trial
court’s judgment awarding Max damages for lost rent.  We also reverse the portion of the judgment
awarding Max its attorney’s fees, and we remand the case for a new trial solely
on the issue of attorney’s fees.  We
affirm the remaining portions of the trial court’s judgment.  
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Bland, and Massengale.




[1]
          See Tex. Prop.
Code Ann. § 93.006(c) (Vernon Supp. 2010).


[2]
              At the time
it executed this lease agreement, Lone Starr had, pursuant to a previous lease
agreement, already occupied the property for ten years for the same
purposes.  


[3]
              The
trial court instructed the jury that it should “not add any amount for repairs
that result from normal wear and tear during the lease” and that “normal wear
and tear” means “deterioration that results from the intended use of the
commercial premises, including breakage or malfunction due to age or
deteriorated condition.”
 


[4]
              The
trial court instructed the jury that a landlord “may not retain any portion of
a security deposit to cover normal wear and tear.” 


[5]           Max
did challenge these instructions at the charge conference in the trial court,
but it does not challenge them on appeal.


[6]
              We
do not suggest, upon remand, that Max will not be permitted to seek an amount
of attorney’s fees consistent with the amount it sought in the trial court and
awarded by the jury.  


