REVERSE and RENDER and Opinion Filed January 14, 2020




                                                       In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                              No. 05-18-01377-CV

                JOSEPH KEMP AND KRR HH RETAIL, LLC, Appellants
                                    V.
             SUBRINA BRENHAM AND SUBRINA'S TAX SERVICES, Appellees

                            On Appeal from the 44th Judicial District Court
                                        Dallas County, Texas
                                 Trial Court Cause No. DC-16-09551

                                   MEMORANDUM OPINION
                  Before Chief Justice Burns, Justice Richter1, and Justice Rosenberg2
                                      Opinion by Justice Richter
         This appeal involves a commercial lease dispute. Following a bench trial, the county court

entered judgment in favor of appellees Subrina Brenham and Subrina’s Tax Services (collectively

“Brenham”) on their constructive eviction claim. In two issues, appellants Joseph Kemp and KRR

HH Retail, LLC (collectively “Kemp”) contend no evidence supports (1) the constructive eviction

claim and (2) the damages award. Because we conclude no evidence supports at least one element

of Brenham’s constructive eviction claim and thus resolve the first issue in Kemp’s favor, we

reverse and render judgment that Brenham take nothing.


1
 The Hon. Martin Richter, Justice of the Court of Appeals for the Fifth District of Texas at Dallas, Retired, sitting by
assignment.
2
 The Hon. Barbara Rosenberg, former Justice of the Court of Appeals for the Fifth District of Texas at Dallas, sitting
by assignment.
                       FACTUAL AND PROCEDURAL BACKGROUND

        Kemp purchased certain commercial property (the “Property”) in which Brenham was a

month-to-month tenant.3 Brenham refused to vacate the Property after the expiration of a 30-day

notice of non-renewal, so Kemp sued for eviction and prevailed. Brenham appealed to the county

court where judgment was again rendered in Kemp’s favor. While her appeal was pending,

Brenham alleged Kemp interfered with her right of possession in numerous ways, thereby

constructively evicting her. The county court issued a writ of possession on July 10, 2015, and on

or about July 14, Brenham vacated the Property.

        On August 8, 2016, Brenham sued Kemp for, among other things, constructive eviction.

Following a bench trial and without issuing findings of fact or conclusions of law, the district court

entered judgment in Brenham’s favor and awarded $91,694 in damages. Kemp appeals the district

court’s judgment.

                                              DISCUSSION

        Kemp’s first issue challenges the legal sufficiency of the evidence supporting the

constructive eviction claim. In two arguments, Kemp contends there is no evidence: (1) a valid

landlord-tenant relationship existed at the time Brenham abandoned the Property, or (2) that

Brenham abandoned the Property as a direct consequence and within a reasonable time of the

triggering acts.

        Evidence is legally insufficient if the record reveals (a) the complete absence of a vital fact,

(b) the court is barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller


3
 There is no evidence in the record of any written lease agreement between Brenham and the former landowner or
between Brenham and Kemp. We thus assume, as the parties did in the court below, the existence of a month-to-
month tenancy.
                                                    –2–
v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). When reviewing the evidence for legal sufficiency,

we consider the evidence in the light most favorable to the challenged finding, crediting favorable

evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable

factfinder could not. Id. at 807.

       To establish a claim for constructive eviction, a tenant must prove (1) the landlord intended

the tenant no longer enjoy the premises, (2) the landlord’s acts substantially interfered with the

tenant’s use and enjoyment of the premises, (3) the tenant was permanently deprived of use and

enjoyment of the premises, and (4) the tenant abandoned the premises within a reasonable time.

Metroplex Glass Ctr., Inc. v. Vantage Properties, Inc., 646 S.W.2d 263, 265 (Tex. Civ. App.—

Dallas 1983, writ ref’d n.r.e.). A constructive eviction claim also necessarily requires a valid

landlord-tenant relationship. TEX. PROP. CODE § 93.001.

       A landlord or a tenant may terminate a month-to-month tenancy for any reason after giving

one month’s notice to the other party. TEX. PROP. CODE § 91.001(a); Struve v. Park Place

Apartments, 923 S.W.2d 50, 52 (Tex. App.—Tyler 1995, writ denied). If a tenant “‘has been in

lawful possession of the property and wrongfully remains as a holdover tenant after [its] interest

has expired,’” the tenant becomes a tenant at sufferance. Coinmach Corp. v. Aspenwood Apartment

Corp., 417 S.W.3d 909, 915 (Tex. 2013); (quoting BLACK’S LAW DICTIONARY 1605 (9th ed.

2009)). Because the tenant remains in possession without the landlord’s consent, the tenant’s

possession is unlawful. Id. In considering Kemp’s first argument that no valid landlord-tenant

relationship existed at the time Brenham abandoned the Property, we also observe that a valid

landlord-tenant relationship must exist at the time a constructive eviction claim arises. Daftary v.

Prestonwood Mkt. Square, Ltd., 404 S.W.3d 807, 815 (Tex. App.—Dallas 2013, pet. denied) (“the

time when the landlord-tenant relationship is critical is when the landlord acts in a way to interfere

with the tenant’s enjoyment of the premises.”).

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       Here, Brenham contends that while her appeal was pending in the county court, Kemp

conducted activities that restricted and limited her ability to conduct business. Specifically,

Brenham alleges Kemp placed dumpsters near her front doors, erected barricades in front of her

entrances, removed her business signs, parked a big white truck in front of her businesses, posted

a sign indicating the road to the Property was closed, constructed a chain link fence around the

Property, and started demolishing the Property (the “triggering acts”). Kemp argues these

triggering acts could not support Brenham’s constructive eviction claim because, at the time they

occurred, no valid landlord-tenant relationship existed.

       In response, Brenham contends she was a holdover tenant and relies on Daftary for the

proposition that holdover tenants can pursue constructive eviction claims. In Daftary, the landlord

refused to address the holdover tenant’s complaints, so it terminated the lease. Id. The tenant sued

for constructive eviction, but the landlord argued that a valid landlord-tenant relationship no longer

existed. Id. at 815. This Court rejected that argument, explaining that a holdover tenant is not

foreclosed from pursuing a constructive eviction claim where the landlord treated the relationship

as if the lease still governed. Id. Specifically, the Daftary landlord demanded and received monthly

rent, and the lease contained a provision that any holdover tenancy was subject to “all conditions,

provisions, and obligations of this lease insofar as the same are applicable to a month-to-month

tenancy.” Id.

       The facts here are distinguishable. Unlike Daftary where the landlord’s conduct

demonstrated consent to the tenant’s continued possession, here, Kemp’s conduct failed to show

consent to Brenham’s continued possession. Kemp immediately gave Brenham a 30-day notice of

non-renewal and, when she refused to vacate, he sued for eviction. Moreover, the record does not

reflect Kemp demanded or received any monthly rent or acted in any manner that could have

renewed Brenham’s month-to-month tenancy. Because Brenham wrongfully remained in

                                                 –4–
possession of the Property without any lease or Kemp’s consent, we conclude Brenham was a

tenant at sufferance with no legally recognizable landlord-tenant relationship or any legal

entitlement to remain in the Property. As such, Brenham was no more than a trespasser. Coinmach

Corp., 417 S.W.3d at 919 (“[U]nder the common law a tenant at sufferance has no legal title or

right to possession, and is thus a ‘trespasser’ who possesses the property ‘wrongfully.’”). Because

no evidence supported the foundational requirement of Brenham’s constructive eviction claim—a

landlord-tenant relationship—she was not entitled to prevail.

        But even if a valid landlord-tenant relationship existed, we also agree with Kemp that

Brenham did not abandon the property as a direct consequence of the triggering acts.4 “The party

claiming constructive eviction . . . carries the burden to offer evidence that the premises was

abandoned because of the complained-of condition.” Ferguson v. Mellon Bank, N.A., No. 05-92-

02459-CV, 1994 WL 197078, at *2 (Tex. App.—Dallas May 16, 1994, writ denied); Coleman v.

Rotana, Inc., 778 S.W.2d 867, 872 (Tex. App.—Dallas 1989, writ denied) (“In addition, it was

appellants’ burden to offer evidence that the premises were abandoned because of inadequate

parking, the intentional act of the landlord upon which they rely.”) (emphasis original); Tempo

Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 663 (Tex. App.—Dallas 1986, writ

ref’d n.r.e.) (“As an element of constructive eviction, it was incumbent upon Tempo to prove that

Crow’s interference with its sign caused it to abandon the shopping center and close the

nightclub.”) (emphasis added).

        Here, the county court issued the writ of possession on July 10, and Brenham vacated the

Property on or about July 14. Brenham did not testify at trial that she abandoned the Property as a




4
 Based on our conclusion that Brenham did not abandon because of the triggering acts, we need not address whether
she abandoned the Property within a reasonable time of those acts.

                                                      –5–
direct consequence of the triggering acts; however, she testified she vacated after the writ of

possession issued:

       [Counsel]: And finally a writ of possession was issued, and you moved out of the
       premises?
       [Brenham]: Yes.

       Moreover, although Brenham argues (1) Kemp gave her the notice of non-renewal at the

worst time because it was the “peak of tax season”; (2) she “didn’t have time to look for the proper

place”; and (3) her ability to relocate was “hampered and delayed” by the triggering acts, she raises

these arguments only with respect to whether her abandonment occurred within a reasonable time.

Brenham, however, makes no arguments as to causation.

       Viewing the evidence under the appropriate standard, we conclude there is no evidence

Brenham abandoned the Property as a direct consequence of the triggering acts. Instead, the record

establishes the opposite: that Brenham vacated only after being lawfully evicted. See Houston v.

DTN Oper. Co. LLC, No. 4:17-CV-00035, 2017 WL 4653246, at *9 (E.D. Tex. Sept. 17, 2017)

(“However, notice of eviction followed by vacating the premises does not qualify as abandonment

for a claim of constructive eviction . . . Nothing in the pleadings suggest that Plaintiff abandoned

the property, but to the contrary, Plaintiff was evicted in accordance with Texas law.”).

Accordingly, we sustain Kemp’s first issue that no evidence supports Brenham’s constructive

eviction claim. Because we sustain Kemp’s first issue, we need not address the damages award.

                                         CONCLUSION

       We conclude that at the time the triggering acts occurred, no landlord-tenant relationship

existed between Brenham and Kemp. Moreover, even if the evidence showed a valid landlord-

tenant relationship, we also conclude no evidence demonstrated that Brenham abandoned the

Property as a direct consequence of the triggering acts. We therefore reverse the trial court’s

judgment awarding Brenham $91,694.00 in damages and render a judgment that Brenham take

                                                –6–
nothing on her constructive eviction claim.

                                                /Martin Richter//
                                                MARTIN RICHTER
                                                JUSTICE, ASSIGNED



181377f.p05




                                              –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JOSEPH KEMP AND KRR HH RETAIL,                     On Appeal from the 44th Judicial District
 LLC, Appellants                                    Court, Dallas County, Texas
                                                    Trial Court Cause No. DC-16-09551.
 No. 05-18-01377-CV         V.                      Opinion delivered by Justice Richter. Chief
                                                    Justice Burns and Justice Rosenberg
 SUBRINA BRENHAM AND SUBRINA'S                      participating.
 TAX SERVICES, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that appellees SUBRINA BRENHAM AND
SUBRINA'S TAX SERVICES take nothing on their constructive eviction claim.

       It is ORDERED that appellants JOSEPH KEMP AND KRR HH RETAIL, LLC recover
their costs of this appeal from appellees SUBRINA BRENHAM AND SUBRINA'S TAX
SERVICES.


Judgment entered this 14th day of January, 2020.




                                              –8–
