                                                                           ACCEPTED
                                                                      07-14-00442-CV
                                                         SEVENTH COURT OF APPEALS
                                                                   AMARILLO, TEXAS
                                                                4/29/2015 12:45:42 PM
                                                                     Vivian Long, Clerk




                  NO. 07-14-00442-CV
          _________________________________          FILED IN
                                              7th COURT OF APPEALS
             IN THE COURT OF APPEALS              AMARILLO, TEXAS
           SEVENTH DISTRICT OF TEXAS          4/29/2015 12:45:42 PM
                                                    VIVIAN LONG
                                                       CLERK
______________________________________________________

                  FERMINE LOPEZ

                      Appellant
                        vs.

                    Norma Bailon

                        Appellee
______________________________________________________
                   On Appeal From the
                 th
               14 Judicial District Court
                  Dallas County, Texas
______________________________________________________

                  APPELLEE’S BRIEF
______________________________________________________


                        Michael Burns
                        State Bar No. 03447980
                        P.O. Box 992
                        Allen, Texas 75213
                        Phone: (214) 354-1667
                        E-mail: mikburns@sbcglobal.net
                        Attorney for Appellee


        ORAL ARGUMENT IS NOT REQUESTED




                          i
                 IDENTITY OF PARTIES AND COUNSEL



Appellant
Fermine Lopez - Dallas, Texas

Counsel for Appellant

T. RICK FRAZIER Texas
Texas Bar No. 07406500
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034-8563
(972) 661-3288
(469) 269-3989 fax
Email – trickfrazier@mac.com


Appellee

Norma Bailon - Dallas, Texas

Trial and Appellate Counsel for Appellee

MICHAEL BURNS
Texas Bar No. 03447980
P.O. Box 992
Allen, Texas75013
(214) 354-1667
Email- mikburns@sbcglobal.net




                                     ii
                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL …………………………………………………. . ii

TABLE OF AUTHORITIES…………………………………………………………………... iv

STATEMENT OF THE CASE……………………………………………………………….. .. 1

ORAL ARGUMENT………………………………………………………………………….... 1

STATEMENT OF FACTS………………………………………………………………………1

SUMMARY OF ARGUMENT……………………………………………………………….... 3

ARGUMENT AND AUTHORITES…………………………………………………………… 4

PRAYER………………………………………………………………………………………..18

CERTIFICATE OF COMPLIANCE…………………………………………………………. .19

CERTIFICATE OF SERVICE………………………………………………………………... 19

APPENDIX……………………………………………………………………………………. 20




                            iii
                                   TABLE OF AUTHORITIES

Cases

American Nat'l Petroleum Co. v. Transcontinental Gas Pipe Line Corp.,
798 S.W.2d 274 (Tex. 1990)......................................................................................7

Arias v. Brookstone, L.P.,
265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) .............6

Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex.1997) .....................................................................................18

Barry v. Jackson,
309 SW 3d 135 (Tex. App- Austin 2010).................................................................7

Catalina v. Blasdel,
881 S.W.2d 295 (Tex. 1994)......................................................................................4

Chung v. Lee,
193 S.W.3d 729 (Tex. App., 2006). ...........................................................................8

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005).................................................................................5, 6

Insurance Alliance v. Lake Texoma Highport, LLC
452 S.W.3d 57 (Tex. App. Dallas 2014) .................................................................16

Jackson v. Biotectronics, Inc.,
937 S.W.2d 38 (Tex.App.-Hous. (14 Dist.), 1996) .................................................17

Jarvis v. Rocanville Corp.,
298 S.W.3d 305 (Tex. App. 2009) ...........................................................................18

Johnson v. Structured Asset Servs., LLC,
148 S.W.3d 711(Tex.App.-Dallas 2004, no pet.) ....................................................13



                                                       iv
Johnston v. McKinney Am., Inc.,
 9 S.W.3d 271 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).........................12

Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572 (Tex. 2006)....................................................................................16

McGinty v. Hennen
372 S.W.3d 625(Tex. 2014) .....................................................................................16

Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997).....................................................................................5

O'Farrill Avila v. Gonzalez,
974 S.W.2d 237 (Tex.App.-San Antonio, 1998....................................................6, 8

Man Engines & Components, Inc. v. Shows,
434 S.W.3d 132, 57 Tex. Sup. Ct. J. 661 (Tex., 2014)............................................11

Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P.,
391 S.W.3d 596 (Tex. App.—Houston [14th Dist.] 2012, no pet.)...........................8

Partners v. the Prudential Ins. Co. of Am.,
341 S.W.3d 323, 54 Tex. Sup. Ct. J. 822 (Tex., 2011)...........................................12

Product Supply v. Marlin Leasing Corp.
(Tex. App Corpus Christi-Edinburg 2013) ................................................................8

Quigley v. Bennett,
227 S.W.3d 51 (Tex. 2007) ........................................................................................8

Sage Street Assoc. v. Northdale Constr. Co.,
863 S.W.2d 438 (Tex.1993) .......................................................................................6

Sullivan v. Abraham,
2014 Tex. App. LEXIS 11319 .................................................................................17

Texas South Rentals, Inc. v. Gomez,
267 S.W.3d 228 (Tex. App Corpus Christi-Edinburg 2008) ...................................10

Whatley v. City of Dallas,
758 S.W.2d 301(Tex.App.-Dallas 1988, writ denied). ............................................13

                                                        v
Statutes

Tex. Civ. Prac. & Rem. Code §27.009(a)(1) ...........................................................17
Tex. Civ. Prac. & Rem Code § 37.009……………………………………………17
Tex. Civ. Prac. & Rem. Code §38.001(8)............................................................4, 17

Rules

Tex. R. Civ. P. 67 ........................................................................................ 4, 6, 7, 15
Tex. R. Civ. P. 90 ........................................................................................ 4, 6, 7, 15
Tex. R. Civ. P. 94 .....................................................................................................10
Tex. R. Civ. P. 95 .....................................................................................................10




                                                           vi
                           STATEMENT OF THE CASE

      Appellee agrees with the appellant’s version of the statement of the case.


                     STATEMENT OF ORAL ARGUMENT

      Appellee Norma Bailon does not request oral argument because the facts,

issues on appeal and applicable law are of a nature that can be sufficiently presented

to the Court in the briefs of the parties.

                             STATEMENT OF FACTS

      The Plaintiff and the Appellee in this case is Norma Bailon. The Defendant

and Appellant is Fermin Lopez. Ms. Bailon and Mr. Lopez executed a commercial

lease for property owned by Mr. Lopez which Ms. Bailon intended to use as a bar.

(RR 13) The lease stated that the term started on February 1, 2011 and was supposed

to have ended on January 31, 2014. (RR 13, 44-50) The lease also provided that the

property was to be used as “Bar, Lounge or Tavern”. (RR 45) The monthly rent

under the lease was $3300 per month which was due on the first day of each month.

(RR 13, 44) The lease stated that the amount required for a security deposit was “0”

and did not provide for late charges if the rent was not paid on time. (RR 18, 46)

      Prior to executing the lease Ms. Bailon advised Mr. Lopez that she intended

to use the property to operate a bar and Mr. Lopez represented to Ms. Bailon that the

building was set up to operate for a bar. (RR 13) Ms. Bailon took possession of the


                                             1
property close to February 3, 2011. (RR 13) When she took possession of the

property, she was unable to use the property as a bar because she was not able to

obtain the necessary permits or certificate of occupancy from the city (Dallas) that

were required to able use it for that purpose because the electrical and plumbing

systems were deficient, the property needed sprinklers for fire protection and

handicap facilities in the bathroom. (RR 14, 15, 22)

      From February 2011 to the end of August 2011, Ms. Bailon hired and paid

contractors to make the necessary improvements to the property in order to obtain

the permits and certificate of occupancy that was required to open her bar. (RR 16)

She opened the bar for business on September 15, 2011. (RR16) Ms. Bailon paid

the following amounts in construction expenses:

   • $5,377.95 to Home Depot (RR 21, 71, 77-110);

   • $1500 to a contractor named Sixtos Vasquez for electrical work (RR 21, 70,

      73);

   • $1,900 to an individual named Martin Laza for air conditioning equipment

      repair (RR 21, 70, 73);

   • $359.39 to a company called the “Lightning Guy” for lighting (RR 21, 22, 70,

      74, 75);

   • $500 to an individual named Caslito Aulia electrical work (RR 22, 70, 76);

   • $398 for replacement of thermostats (RR 22, 70, 77);

                                         2
   • $1,175 for installation of fire sprinklers (RR 22, 23, 112).

      Ms. Bailon continued to pay rent to Mr. Lopez during the time she unable to

operate her bar. From February 1, 2011 to September 15, 2011, she paid a total of

$21,450 in rent. (RR 16, 54) October 2012 was the final full month of the lease

because Mr. Lopez’s lender foreclosed on the property and terminated the lease. (CR

7) (RR 7, 10, 11) That was the last month that Ms. Bailon paid a full month’s rent.

Ms. Bailon had paid Mr. Lopez $3,300 for the last month’s rent on January 3, 2011

and also paid $3,300 for the October 2012 rent on October 3, 2012. (RR 54, 55, 57)

      Ms. Bailon also paid Mr. Lopez the following:

        • $2,050 in late charges and $6,600 for a security deposit (RR 18, 19, 59-

           63);

        • $6,800 for a construction expense (RR 19, 66);

        • $20,000 for a sale of a business (RR 19, 20, 68).

                         SUMMARY OF ARGUMENT

     The judgment of the trial court should be affirmed on several grounds. First,

all of the evidence offered by Ms. Bailon and admitted by the trial court was

uncontroverted and undisputed by Mr. Lopez. Second, even though Mr. Lopez

claims that breach of the lease alleged in the Amended Petition was not the proper

legal theory for the recovery of the damages entered against him by the trial court,




                                         3
he has waived those issues in this appeal under Tex. R. Civ. P. 67 and Tex. R. Civ.

P. 90 because he failed to object or raise the issue to the trial court.

      Third, the judicially recognized purpose for damages in a breach of contract

case is to compensate Ms. Bailon for any damages she sustained as a result of Mr.

Lopez’s breach of the lease. The damages for the rent payments, late charges,

security deposit, the construction expense, sale of the business and repair costs

awarded by the trial court are supported by uncontroverted evidence in the record

and are proper compensatory damages under Texas contract law. Finally, the

attorney fees awarded to Ms. Bailon are supported by undisputed evidence in the

record and awarded on the broad discretion of the trial court under Tex. Civ. Prac.

& Rem. Code §38.001(8).


                       ARGUMENTS AND AUTHORITIES

            LEGAL AND FACTUAL SUFFICIENCY STANDARD

      Mr. Lopez is challenging the judgment entered by the trial court on legal and

factual sufficiency grounds. The case was tried as a bench trial rather than a jury

trial. A trial court's findings are reviewable for legal and factual sufficiency of the

evidence under the same standards are in a jury trial. Catalina v. Blasdel, 881 S.W.2d

295 (Tex. 1994). Mr. Lopez did not offer any evidence at all in the case let alone

any evidence in his favor. Consequently, all of the evidence that Ms. Bailon offered,

was admitted by the court and was uncontroverted and undisputed.
                                            4
      The standard in a legal sufficiency, or "no-evidence" review, is whether the

evidence would enable reasonable and fair-minded people to reach the verdict under

review. Under this review, favorable evidence is given credit if a reasonable fact-

finder could do so and contrary evidence is disregarded unless a reasonable fact-

finder could not disregard it. The evidence is considered in the light most favorable

to a finding under review and every reasonable inference that would support it is

used. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)

      A no evidence contention should only be sustained if (1) the record reveals a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law

or 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 the vital fact. City of Keller v.

Wilson at 810; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997). Anything more than a scintilla of evidence is legally sufficient to support a

finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960

S.W.2d 41, 48 (Tex. 1998).

       In reviewing a factual sufficiency challenge, a judgment should only be set

aside if it is so “contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust." Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—

Houston 2007, pet. denied)


                                          5
         Ms. Bailon was the only witness in the case except for her attorney on the

issue of the attorney fees. The trial court, as the fact-finder, was the sole judge of

Ms. Bailon’s credibility. This Court should assume that the trial court decided any

question of Ms. Bailon’s credibility in favor of the judgment. City of Keller, 168

S.W.3d at 819.

               TEXAS RULES OF CIVIL PROCEDURE 67 AND 90

         Mr. Lopez makes several contentions in his argument that the damages

leveled against him by the trial court were incorrect because they were not supported

by the breach of the lease theory of liability in the Amended Petition. Mr. Lopez is

not permitted to raise these issues on appeal because he did not raise them at the trial

level.

         Under Tex. R. Civ. P. 90 any defects in the pleadings in a bench trial are

waived unless they are specifically pointed out to the trial judge before judgment is

signed. Likewise, Tex. R. Civ. P. 67 provides that when issues not raised by the

pleadings are tried by the consent of the parties, the pleadings are amended to

conform to the evidence. O'Farrill Avila v. Gonzalez, 974 S.W.2d 237 (Tex. App.-

San Antonio, 1998). Sage Street Assoc. v. Northdale Constr. Co., 863 S.W.2d 438,

449 n. 13 (Tex.1993).

         The record on appeal does not contain any objection by Mr. Lopez at the trial

level relating to any of the evidence admitted by the trial court. Consequently, he is


                                           6
prevented from raising any defect in the pleadings as an issue in this appeal by Tex.

R. Civ. P. 90 and Tex. R. Civ. P. 67.


                      BREACH OF LEASE AND DAMAGES

      Mr. Lopez contends that none of the damages the trial court awarded to Ms.

Bailon for rent, late charges, construction expenses and the “sale of business”

expense that she paid to Lopez and the repairs she made to the property are proper

under a breach of the lease theory.

      The general rule in a breach of contract case is that the damages should put a

plaintiff in the same economic position that he or she would have been in had the

contract not been breached. See American Nat'l Petroleum Co. v. Transcontinental

Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990). Barry v. Jackson, 309 SW

3d 135 (Tex. App- Austin 2010). The goal in measuring damages for a breach of

contract claim should be to provide “just compensation for any loss or damage

actually sustained as a result of the breach." Parkway Dental Assocs., P.A. v. Ho &

Huang Props., L.P., 391 S.W.3d 596, 607 (Tex. App.- Houston 2012, no pet.).

Product Supply v. Marlin Leasing Corp. (Tex. App Corpus Christi-Edinburg 2013).

      Damages for breach of contract protect three distinct interests. One is a

restitution interest. Another is a reliance interest. The third is an expectation interest.

In order to put a party in the same position he or she would have been if the breach

had not occurred, each of these interests must be protected. O'Farrill Avila v.
                                            7
Gonzalez, 974 S.W.2d 237 (Tex. App.-San Antonio, 1998) If a party makes a

substantial investment in performing a contract, that party is entitled to have that

investment returned. Chung v. Lee, 193 S.W.3d 729 (Tex. App. 2006). Restitution

damages restore what the plaintiff has conferred on the defendant. Quigley v.

Bennett, 227 S.W.3d 51 (Tex. 2007).


                          A. The “Unauthorized” Charges

       Mr. Lopez questions how he could liable for breaching the lease by charging

Mr. Bailon for the following amounts if these charges were not included in the lease:

          • Security deposit: $6600;

          • Late charges: $2050;

          • Construction Expense: $6,800;

          • Purchase price for the “sale of the business”: $20,000.

      Mr. Lopez does not dispute that he charged Ms. Bailon for the late charges

even though the lease did not provide for it nor does he dispute that Ms. Bailon paid

the charges or that he kept the $2050 paid by Ms. Bailon. (CR 18)

      Mr. Lopez also does not dispute that the lease contained a provision that

provided that the security deposit was “0” yet Mr. Lopez charged, and Ms. Bailon

paid, $6,600 for a security deposit. (RR 18, 19, 45, 65-67) Mr. Lopez contends that

since receipt for the $6,600 security deposit was dated before the lease, the lease

reflected “0” for the security deposit since it had already been paid. Mr. Lopez also
                                         8
contends that since the lease does not contain a provision for the sale of business

charge or the construction expense, there must have been a separate agreement

between Lopez and Bailon to justify these charges.

       There is absolutely nothing in the trial record to support either of these

presumptions. Mr. Lopez ignores the fact that paragraph 30 of the lease states that

the lease is the “Final Agreement” between he and Ms. Bailon and that the lease

“supersedes all prior understandings or agreements on the subject matter”. (RR 52)

       The undisputed evidence at the trial was that Ms. Bailon paid these charges

because Lopez instructed her to pay them because she owed them under the lease.

(RR 18- 20) Consequently, either Lopez was outright lying when he told Bailon

that the charges were covered in the lease or he legitimately thought that the charges

were included in the lease.

       Regardless of whether these charges were expressly provided for in the lease,

the unrebutted evidence shows that both Ms. Bailon and Mr. Lopez considered them

part of the lease and that Ms. Bailon paid them to Mr. Lopez and that Mr. Lopez

accepted them. Consequently, they are proper damages under Texas contract law.


                                Voluntary Payment Rule

        Mr. Lopez tries to justify keeping the payments Ms. Bailon made for the late

charges, security deposit, sale of business expense and construction expense under

the voluntary payment rule. The voluntary payment rule is not applicable to this case.
                                          9
It is affirmative defense to a claim for restitution under an unjust enrichment theory

of liability. Texas South Rentals, Inc. v. Gomez, 267 S.W.3d 228 (Tex. App Corpus

Christi-Edinburg 2008)

        Mr. Lopez did not allege the voluntary payment rule as an affirmative

defense in his answer. The closest he came to it was alleging a defense of “payment”

under Tex. R. Civ. P. 94 and Tex. R. Civ. P. 95. The defense of ‘payment” is an

affirmative defense to a claim on a debt, such as a promissory note, where a

defendant contends that the debt has been paid. Imperial Lofts, Ltd. v. Imperial

Woodworks, 245 S.W.3d 1 (Tex. App., 2007). This was not a suit on a debt by Ms.

Bailon so the payment defense under Tex. R. Civ. P. 94 and Tex. R. Civ. P. 95 is not

applicable. Since he did not raise the voluntary payment rule as a defense in the trial

court, he cannot raise it now on appeal. Man Engines & Components, Inc. v. Shows,

434 S.W.3d 132, 57 Tex. Sup. Ct. J. 661 (Tex., 2014)

           Premises Suitability for its Intended Commercial Purpose

       The undisputed testimony at the trial was that before the lease was executed,

Ms. Bailon told Mr. Lopez that she intended to use the property to operate a bar and

that Mr. Lopez represented to her that the property was set up for that purpose. (RR

13-14) Despite this, Mr. Lopez now contends that he was not required by the lease

to have the property in condition for a bar operation so he should not be liable for




                                          10
any of the $11,260.34 in expenses that Ms. Bailon incurred to bring the property up

to code for a bar operation. (RR 72, 112).

       Paragraph 28 of the lease provides:

          28. Compliance with Law.
          Tenant shall comply with all laws, orders, ordinances and other public
          requirements now or hereafter pertaining to Tenant's use of the Leased
          Premises. Landlord shall comply with all laws, orders, ordinances and
          other public requirements now or hereafter affecting the Leased Premises.
          (RR 51-52).

       Since Mr. Lopez was aware that the property was going to be used as a bar

and represented to Ms. Bailon before she took possession that the property was ready

for a bar operation, the language “Landlord shall comply with all laws, orders,

ordinances and other public requirements now or hereafter affecting the Leased

Premises” certainly created an express contractual obligation for Mr. Lopez to make

sure the property was code compliant for a bar.

      The undisputed evidence is that Ms. Bailon spent $10,085.34 in repair

expenses (RR-73) and an additional $1,175 (RR 112) for fire equipment to bring the

building up to code for bar operation when Mr. Lopez was contractually required to

have the building code compliant.

      Mr. Lopez contends that breach of the implied covenant of suitability may

have been a more applicable theory of liability for Ms. Bailon. Under this theory,

Mr. Lopez would have impliedly warranted that at the inception of the lease, there




                                            11
were no latent defects in the property that were vital for its use as a bar. Partners v.

the Prudential Ins. Co. of Am., 341 S.W.3d 323, 54 Tex. Sup. Ct. J. 822 (Tex. 2011).

      This raises the application of the trial amendment of pleadings under Tex. R.

Civ. P. 67 and the waiver of defects in pleadings under Tex. R. Civ. P. 90. When

issues not raised by the pleadings are tried by express or implied consent of the

parties, they are treated in all respects as if they had been raised in the pleadings.

The rule applies when it appears from the record that the issue was actually tried but

not pleaded. Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex. App.-

Houston 1999, pet. denied).

       An unpleaded issue is tried by consent when evidence on the issue is

developed under circumstances indicating both parties understood the issue was in

the case and the issue was not objected to. Johnson v. Structured Asset Servs., LLC,

148 S.W.3d 711, 719 (Tex.App.-Dallas 2004, no pet.). The trial court has broad

discretion in determining whether an unpleaded issue was tried by consent. Whatley

v. City of Dallas, 758 S.W.2d 301, 306 (Tex. App.-Dallas 1988, writ denied).

      In this case, the testimony of Ms. Bailon regarding the condition of the

property and the repairs she had to make was a primary issue. Mr. Lopez’s cross

examination of Ms. Bailon were questions concerning the repairs. (RR 24-30) If

breach of the implied warranty of suitability was an applicable theory of liability in

this case, Rule 67 allows the pleadings to be amended to cover this theory because


                                          12
Mr. Lopez tried it by consent and he has waived any defect in the pleadings under

Rule 90 by failing to make a proper objection.

                                Forfeiture of Rent

       Mr. Lopez contends that Ms. Bailon should not able to recover for the rent

payments she made to him for the period of February 1, 2011 to September 15, 2011

(seven and one half months) when she could not operate her bar because she was

bringing the property up to code. The monthly rent was $3,300. The total paid by

Ms. Bailon was $24,750. (RR 16-18) The rent paid by Ms. Bailon that is

documented by receipts in her Amended Business Record Affidavit was $15,900.

This figure included $12,600 for the rent paid during February to September 2011

and a $3,300 overpayment for the October 2012 rent for a total of $15,900. In

addition to the $15,900, the record contains uncontroverted testimony from Ms.

Bailon that she paid rent of $8,850 in cash that Mr. Lopez did not give her a receipt

for. (RR 18)

       The term of the lease was supposed to be from February 1, 2011 to January

31, 2014(CR 44). The lease was terminated early, on November 6, 2012, when Mr.

Lopez’s mortgage lender, Viceroy Investments LLC, foreclosed on the property.

Consequently, the last full month that Ms. Bailon paid rent to Mr. Lopez was for

October 2012. The over payment occurred because Ms. Bailon paid the last

month’s rent on January 3, 2011 prior to the effective date of the lease (RR 55) and


                                        13
also made a payment of $3,300 on October 3, 2012 for the October 2012 rent which

was the last month that she occupied the property as a lessee. (CR 54, 57)

      There is no testimony in the record by Ms. Bailon explaining the

overpayment but there is documentation substantiating it in her Amended Business

Record affidavit. (RR 54, 55) Although Ms. Bailon’s testimony that she paid a total

of $24,750 in rent for the period of February 1st to September 15, 2011 is not entirely

accurate because the $3,300 overpayment is included in the $24,750, her testimony

along with the Amended Business Affidavit constitute unrebutted evidence that the

amount of rent she should not have had to pay and is entitled to recover from Mr.

Lopez is a total of $24,750.

      Ms. Bailon’s legal basis for recovery of the $24,750 in rent falls under the

primary purpose for contractual damages which is to put her back into the same

position had Mr. Lopez not breached the lease. If the property had been code

compliant for a bar operation at the commencement of the lease as Mr. Lopez had

represented (and if Mr. Lopez would have not charged a double payment for the

October 2012 rent), Ms. Bailon would not have had to pay rent for a building that

she could not use (or pay a double payment).

      Mr. Lopez also contends that the rent the trial court awarded Ms. Bailon is

more of a breach of an implied warranty of suitability issue than a breach of contract

issue. If that proposition has any validity then, again, it leads back to that these


                                         14
issues were tried by the court with no objection form Mr. Lopez so either the

pleadings were deemed amended under Tex. R. Civ. P. 67 to account for the implied

warranty of suitability theory or Mr. Lopez has waived the issue under Tex. R. Civ.

P. 90.

                              New Air-Conditioning

         Mr. Lopez questions the portion of the damages related to repair of the air

conditioning system and states that the charge was for a new air conditioner. That

is incorrect. The only charge relating to the air conditioning system was for $1,950

for repair, not replacement, of the air conditioner (RR 12, 70, 73). The evidence of

this repair was uncontroverted.

         This repair was one that Ms. Bailon had to make to get the property in

condition to open her bar operation. In addition, the repair was covered in Paragraph

5 of the lease which provides that it was not Ms. Bailon’s responsibility to repair

“major mechanical systems”. Since the air conditioning system was part of the

“major mechanical” system for the property, Mr. Lopez was responsible for it. (RR

45).

                    REASONABLNESS OF THE REPAIR DAMAGES

       Mr. Lopez contends that Ms. Bailon was required to provide expert testimony

that the repairs she made were reasonable and necessary. Neither of the cases cited

by Mr. Lopez support this contention. The McGinty v. Hennen case stated that a


                                        15
party seeking remedial damages for breach of a construction contract has to prove

that remedial damages are “reasonable and necessary”.

         In Insurance Alliance v. Lake Texoma Highport, LLC, the issue was whether

a lay witness testifying on the scope of coverage in an insurance policy was an expert

or not. The Dallas Court of Appeals ended up ruling that expert testimony was not

required on the issue the witness was testifying on and the jury could consider his

testimony either way. The Insurance Alliance decision recognized the general rule

that expert testimony is required only when an issue involves matters beyond a fact

finder’s common understanding. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex.

2006).

         Mr. Lopez has presented no authority which required that Ms. Bailon prove

that the repairs she did were reasonable and necessary by expert testimony. It was

proper for the trial court to consider her own unrebutted testimony as sufficient to

establish the repair costs she incurred based on her own testimony and

documentation evidence. See, Jackson v. Biotectronics, Inc., 937 S.W.2d 38

(Tex.App.-Hous. 1996)


                                 ATTORNEY FEES

         Mr. Lopez challenges the trial court’s judgment for attorney fees on the

grounds that Tex. Civ. Prac. & Rem. Code §38.001(8) requires recovery on a breach

of contract claim for an award of attorney fees and that the record contains
                                         16
insufficient evidence to justify the $9,075 amount that was awarded. Mr. Lopez is

correct that Tex. Civ. Prac. & Rem. Code §38.001(8) requires recovery on a breach

of contract claim for attorney fees to be awarded to the prevailing party. The trial

court awarded Ms. Bailon attorney fees under §38.001(8) as the prevailing party so

it can be implied that the trial court based it on a breach of the lease by Mr. Lopez.

Unless the trial court’s ruling is reversed on the breach of the lease, then the award

should stand.

         Mr. Lopez also contends that there is insufficient evidence in the record to

support the attorney fees. However, the case that Mr. Lopez cites to support his

position, Sullivan v. Abraham, 2014 Tex. App. LEXIS 11319 was decided under

Tex. Civ. Prac. & Rem. Code §27.009(a)(1) and Tex. Civ. Prac. & Rem. Code

§37.009 which contain a different standard for an award than Tex. Civ. Prac. & Rem.

Code §38.001(8). As Sullivan v. Abraham recognized both §27.009(a)(1) and

§37.009 qualify the recovery of attorney fees with language that “equity” has to be

considered in an award. That consideration is not reflected in §38.001(8). The only

qualification in §38.001(8) is that the fees have to reasonable.

          Likewise, it is not required under §38.001(8) that a court have

documentary evidence or testimony on the eight attorney fee factors cited in Arthur

Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997). When a

case is tried as a bench trial, the trial court has the discretion on the amount of the


                                          17
attorney fees. Jarvis v. Rocanville Corp., 298 S.W.3d 305 (Tex. App., 2009). The

record contains unrebutted testimony of Mr. Bailon’s counsel that he spent thirty

three hours on the case in court hearings, drafting pleadings, research, mediation and

client consultation at the rate of $275 per hour. The trial court had the discretion to

accept or reject the $9,075 amount. Since Mr. Lopez has made absolutely no

showing that trial court abused its discretion, the award of attorney fees should be

affirmed.

                                         PRAYER

      Appellee Norma Bailon requests that this Court affirm the trial court’s

judgment in whole and award the costs of this appeal to the Appellee.



                                         Respectfully submitted,

                                          s/Michael Burns
                                          State Bar No. 03447980
                                          P.O. Box 992
                                          Allen, Texas 75213
                                          Phone (214) 354-1667
                                          E-mail: mikburns@sbcglobal.net
                                          Attorney for Appellee




                                          18
                         CERTIFICATE OF COMPLIANCE

I hereby certify that this document was produced on a computer using Microsoft
Word 2013 and contains 4970 words, as determined by the computer software’s
word-count function excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).


                                       s/ Michael Burns




                            CERTIFICATE OF SERVICE

 I certify that a copy of this Appellee’s brief was served on April 29, 2015 on
Appellants counsel T. Rick Frazier as indicated:

       email - trickfrazier@me.com


                                       s/ Michael Burns




                                         19
                        APPENDIX

Tex. R. Civ. P. 67 ………………………………………………………. 1

Tex. R. Civ. P. 90……………………………………………………….. 2

Tex. R. Civ. P. 94……………………………………………………….. 3

Tex. R. Civ. P. 95……………………………………………………….. 4

Tex. Civ. Prac. & Rem. Code §27.009………………………………….. 5

Tex. Civ. Prac. & Rem. Code §37.009………………………………….. 6




                            20
Tex. R. Civ. P. 67 Amendments To Conform To Issues Tried Without Objection (Texas Rules of
                              Civil Procedure (2014 Edition))



Rule 67 Amendments To Conform To Issues Tried Without Objection
RULE 67. AMENDMENTS TO CONFORM TO ISSUES TRIED WITHOUT
OBJECTION
When issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in the
pleadings. In such case such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made by
leave of court upon motion of any party at any time up to the submission of the case
to the Court or jury, but failure so to amend shall not affect the result of the trial of
these issues; provided that written pleadings, before the time of submission, shall be
necessary to the submission of questions, as is provided in Rules 277 and 279.
    Tex. R. Civ. P. 90 Waiver of Defects In Pleading (Texas Rules of Civil Procedure (2014
                                           Edition))



Rule 90 Waiver of Defects In Pleading
RULE 90 WAIVER OF DEFECTS IN PLEADING
General demurrers shall not be used. Every defect, omission or fault in a pleading
either of form or of substance, which is not specifically pointed out by exception in
writing and brought to the attention of the judge in the trial court before the
instruction or charge to the jury or, in a non-jury case, before the judgment is signed,
shall be deemed to have been waived by the party seeking reversal on such account;
provided that this rule shall not apply as to any party against whom default judgment
is rendered.
   Tex. R. Civ. P. 94 Affirmative Defenses (Texas Rules of Civil Procedure (2014 Edition))




Rule 94 Affirmative Defenses
RULE 94. AFFIRMATIVE DEFENSES
In pleading to a preceding pleading, a party shall set forth affirmatively accord and
satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter constituting an avoidance
or affirmative defense. Where the suit is on an insurance contract which insures
against certain general hazards, but contains other provisions limiting such general
liability, the party suing on such contract shall never be required to allege that the
loss was not due to a risk or cause coming within any of the exceptions specified in
the contract, nor shall the insurer be allowed to raise such issue unless it shall
specifically allege that the loss was due to a risk or cause coming within a particular
exception to the general liability; provided that nothing herein shall be construed to
change the burden of proof on such issue as it now exists.
      Tex. R. Civ. P. 95 Pleas of Payment (Texas Rules of Civil Procedure (2014 Edition)




Rule 95 Pleas of Payment
RULE 95. PLEAS OF PAYMENT
When a defendant shall desire to prove payment, he shall file with his plea an
account stating distinctly the nature of such payment, and the several items thereof;
failing to do so, he shall not be allowed to prove the same, unless it be so plainly and
particularly described in the plea as to give the plaintiff full notice of the character
thereof.
 Tex. Civil Practice and Remedies Code Sec. 27.009 Damages and Costs. (Texas Statutes (2014
                                         Edition))



Sec. 27.009 Damages and Costs.
(a) If the court orders dismissal of a legal action under this chapter, the court shall
award to the moving party:
(1) court costs, reasonable attorney's fees, and other expenses incurred in defending
against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines
sufficient to deter the party who brought the legal action from bringing similar
actions described in this chapter.
(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or
solely intended to delay, the court may award court costs and reasonable attorney's
fees to the responding party.
Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17,
2011.
   Tex. Civil Practice and Remedies Code Sec. 37.009 Costs. (Texas Statutes (2014 Edition))




Sec. 37.009 Costs.
In any proceeding under this chapter, the court may award costs and reasonable and
necessary attorney's fees as are equitable and just.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
