Affirmed; Opinion Filed June 23, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00258-CV

                 SHIELDS LIMITED PARTNERSHIP, Appellant
                                  V.
         BOO NATHANIEL BRADBERRY AND 40/40 ENTERPRISES, Appellees

                       On Appeal from the County Court at Law No. 5
                                   Dallas County, Texas
                           Trial Court Cause No. CC-14-00541-E

                             MEMORANDUM OPINION
                           Before Justices Fillmore, Myers, and Evans
                                   Opinion by Justice Myers
       This case involves the right to possession of the property containing the San Francisco

Rose restaurant in Dallas, Texas. Shields Limited Partnership (“Shields”) appeals the trial

court’s judgment awarding possession of the premises to Boo Nathaniel Bradberry and 40/40

Enterprises, Inc. in this suit for forcible detainer. Shields brings one issue on appeal contending

the trial court erred by awarding possession of the property to appellees. We affirm the trial

court’s judgment.

                                        BACKGROUND

       In 1997, Bernard E. Shields owned the property containing the San Francisco Rose

restaurant in Dallas, Texas. On March 19, Bernard Shields leased it to Mohsen Heidari for a

ten-year term from June 1, 1997 to May 31, 2007. The lease provided that the tenant had the

option to extend the term for an additional five-year period at the rate of $3,000 per month if the
tenant had “fulfilled all of the terms and conditions of the initial lease period.” To exercise the

option, the tenant was to notify the landlord’s agent at least ninety days before the expiration of

the initial lease term. The lease provided for holdover rent after the expiration of the lease’s term

of $3,000 per month. The lease required all rent to be paid on or before the first day of the

month and delivered to landlord’s agent, Robert Lindsley, a real estate broker.           The lease

provided there was an event of default if the rent was not paid by the tenth day of the month. If

the rent was paid late, the lease permitted the landlord to impose a late charge.

       At some point after the execution of the lease, Bernard Shields transferred the property to

Shields Limited Partnership. In late 2004 or early 2005, Tom Shields, Bernard Shields’s son,

took over as general manager of the Shields partnership.

       On June 1, 2005, Heidari subleased the property to Bradberry, and Bradberry

sub-subleased the property to his company, 40/40 Enterprises, Inc.          Lindsley, as agent for

Shields, signed the sublease consenting to the sublease. The sublease provided that it was

subordinate to the lease and subject to all the terms and conditions of the lease. In the sublease,

Bradberry assumed all the obligations of the tenant under the lease. The sublease stated its

termination date was the same as the termination date of the lease. The sublease also provided

that if the terms of the lease were fulfilled, then Bradberry would sign a new lease with Shields

and would become the tenant (as opposed to subtenant) effective June 1, 2007.

       The controversy in this case largely concerns an alleged amendment to the lease in April

2005, entered into while Bradberry was negotiating for the sublease. That provision stated that if

“Subtenant,” i.e., Bradberry, had fulfilled all of the terms and conditions of the lease, he would

“have the option as Tenant to extend the lease for an additional 5 years from June 1, 2012

through May 3, 2017,” with the changes that (1) the rent would be adjusted annually to reflect

changes in the Consumer Price Index (CPI), and (2) that Bradberry would have to pay the pro

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rata share of the property taxes “when billed by Principal Realtor or Landlord.” The amendment

required Bradberry to exercise the option at least ninety days before the lease ended on May 31,

2012. The amendment also contained provisions for extending the lease from 2017 to 2022 and

from 2022 to 2027. The amendment was signed by Heidari, Bradberry, and Lindsley. A space

for Tom Shields to sign as “Landlord” was not signed.

        On February 22, 2007, Lindsley sent Heidari a letter reminding Heidari of his right to

extend the lease through May 31, 2012. Heidari timely signed a statement at the bottom of the

letter stating, “I want to exercise my option as outlined above.” On September 23, 2011, which

was more than ninety days before May 31, 2012, Bradberry sent Lindsley a letter, stating, “As

you know, per our conversations, we will be exercising our option to stay at the Rose . . . .”

       Bradberry testified that through 2011, he dealt only with Lindsley on behalf of the

landlord, Shields, and that he never even met Tom Shields until 2012. All of Bradberry’s rent

checks through the end of 2011 were made payable to Lindsley’s company. In January 2012, a

new company, Lagniappe LLC and Scott Covington, took over management of the property from

Lindsley’s company.     Bradberry was directed to make the rent checks payable to Shields

beginning January 2012. Lindsley died in July 2012.

       Although the lease stated that all rent payments were due on the first of the month,

Bradberry testified that Lindsley told him to pay the rent by the twentieth day of each month

with a five-day grace period. However, Bradberry’s rent payments were occasionally made after

the twenty-fifth day of the month. The rent for May 2012 was not paid until June 13, 2012, and

the November 2012 rent was paid on December 4, 2012. When the December 2012 rent was not

paid by December 18, Tom Shields sent Bradberry a letter of default via e-mail telling Bradberry

that if the rent was not paid within five days, further action would be taken. Shields also

assessed late fees of $500 each for November and December 2012.

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       The same day as the letter of default, Bradberry responded with an e-mail to Tom Shields

stating the check was in the mail and would be delivered the next day. Also on December 18,

2012, Bradberry sent Tom Shields a letter stating that on May 31, 2012, he began the first of

three five-year extensions of the lease. In the letter, Bradberry described that having the lease

extensions through 2027 was a significant reason for his purchase of the restaurant because of

the extensive restoration and renovations necessary for the property. Bradberry also stated the

extensions were necessary for the restaurant to obtain its liquor license. Bradberry stated in the

letter that he had spent over $250,000 on the building, and that he would not have spent that

money if he did not think he could own the business for many years.

       On October 16, 2013, Covington sent Bradberry a proposed new lease, which increased

the rent from $3,000 per month to $9,700.83 per month. Bradberry rejected the proposed lease.

       On October 30, 2013, Shields’s lawyer sent Bradberry notice of termination of the lease.

The notice stated that the lease had expired on May 31, 2012, and that the landlord had permitted

Bradberry to occupy the premises since then on a month-to-month basis. The letter also stated

that if the 2005 amendment to the lease was valid, then Bradberry had failed to pay any increased

rent and his share of the property taxes, which constituted a default under the lease. The notice

of termination required Bradberry to vacate the premises by December 1, 2013.

       When Bradberry did not vacate the property, Shields filed suit for eviction in the justice

court. The justice court ruled for Bradberry, and Shields appealed to the county court at law.

After a trial before the court, the trial court awarded possession of the premises to Bradberry and

40/40 and awarded them attorney’s fees.

                                  STANDARD OF REVIEW

       This case was tried before the court. The parties did not request findings of fact and

conclusions of law, and the trial court did not make findings of fact and conclusions of law.


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When no findings of fact and conclusions of law were requested or filed, it is implied that the

trial court made all findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990) (per curiam); Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas

2004, no pet.). The judgment will be upheld on any legal theory that finds support in the

evidence. Niskar, 136 S.W.3d at 754.

         In this case, Shields contends it conclusively established that Bradberry and 40/40 had no

right to possession of the premises. Shields contention is a challenge to the legal sufficiency of

the evidence to the trial court’s implied findings. See Estate of Finney, 424 S.W.3d 608, 623

(Tex. App.—Dallas 2013, no pet.) (“An appellant attacking the legal sufficiency of an adverse

finding on an issue on which it has the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue.”). When addressing a legal

sufficiency challenge, we view the evidence in the light most favorable to the challenged finding,

crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence

unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). Anything more than a scintilla of evidence is legally sufficient to support the finding.

Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.

1998).

         When construing a written contract, our primary concern is to ascertain the true intentions

of the parties as expressed in the instrument. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223, 229 (Tex. 2003). We consider the entire writing and attempt to harmonize and give effect

to all the provisions of the contract by analyzing the provisions with reference to the whole

agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per

curiam); J.M. Davidson, 128 S.W.3d at 229. When the provisions of a contract appear to

conflict, we will attempt to harmonize the provisions and assume the parties intended every

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provision to have some effect. See United Protective Servs., Inc. v. West Village Ltd. P’ship, 180

S.W.3d 430, 432 (Tex. App.—Dallas 2005, no pet.). In doing so, however, we need not embrace

strained rules of interpretation in order to avoid ambiguity at all costs. Reilly v. Rangers Mgmt.,

Inc., 727 S.W.2d 527, 530 (Tex. 1987). If we are unable to harmonize the provisions and give

effect to all its clauses, the contract is susceptible to more than one reasonable interpretation and

is thus ambiguous. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners

Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet. denied).

                                                       FORCIBLE DETAINER

           A forcible detainer action is a procedure to determine the right to immediate possession

of real property where there was no unlawful entry. TEX. PROP. CODE ANN. § 24.002(a)(2) (West

2014); TEX. R. CIV. P. 510.1;1 Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no

pet.). It is intended to be a speedy, simple, and inexpensive means to obtain possession without

resort to an action on the title. Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936); Rice, 51

S.W.3d at 709. The trial court must adjudicate the right to actual possession of the property.

TEX. R. CIV. P. 510.3(e).

           The parties disagree about whether the lease term was month-to-month following the

expiration of Heidari’s lease in 2012 or whether the lease was extended to 2017 under the

extension provision in the 2005 amendment to the lease. If the lease expired in 2012, then

Shields was entitled to recover possession of the property; but if the term of the lease was

extended by the 2005 amendment to 2017, then Bradberry was entitled to keep possession of the

property if he complied with the terms of the lease as amended.




     1
       Although rule of civil procedure 510 is titled “Eviction Cases,” it states that it applies to suits “to recover possession of real property under
Chapter 24, of the Texas Property Code.” Chapter 24 of the property states, “Eviction suits include forcible entry and detainer and forcible
detainer suits.” See TEX. PROP. CODE ANN. § 24.004(a) (West 2014); TEX. R. CIV. P. 510.1.



                                                                         –6–
       Shields first asserts, “If the unsigned amendment is unenforceable, which it should be, the

Lease terminated on May 31, 20012 [sic].” Shields presents no argument or authority supporting

this assertion. The rules of appellate procedure require that a party present argument and cite

authority in support of the contentions made in the brief. TEX. R. APP. P. 38.1(i). Because

Shields has presented no argument beyond the conclusion that the amendment was unenforceable

and cited no authority in support of it, we conclude Shields has not properly briefed this

assertion. See Reeder v. Curry, 426 S.W.3d 352, 357 (Tex. App.—Dallas 2014, no pet.).

       Shields also argues that if the amendment is enforceable, then the trial court should have

determined that the extension to 2017 never took effect because Bradberry was behind on the

rent at the end of the term of the lease, May 31, 2012. Section 17.10 of the amended lease stated,

“If Subtenant has fulfilled all of the terms and conditions of the lease and option set forth in

17.03, he shall have the option as Tenant to extend the lease for an additional 5 years from June

1, 2012, through May 31, 2017 . . . .” Section 17.03 stated,

       If Tenant has fulfilled all of the terms and conditions of the initial lease period, he
       shall have the option to extend the lease for an additional 5-year period at the rate
       of $3,000/month. Tenant will notify Landlord’s Agent in writing of his intention
       to exercise this option no later than ninety (90) days prior to the expiration of the
       initial lease period.

The trial court could conclude that Bradberry gave timely notice by delivering a letter to

Lindsley on September 23, 2011, stating, “we will be exercising our option to stay at the Rose.”

However, it is undisputed that Bradberry had not paid the rent for May 2012 by May 31, 2012.

Bradberry testified that he was not current on the rent on May 31, 2012. Bradberry also testified

he sent Tom Shields an e-mail on June 7, 2012, stating he would pay the rent for May 2012 by

June 13, 2012. Shields argues that the extension from 2012 to 2017 never went into effect

because Bradberry, by failing to pay the May 2012 rent before May 31, 2012, had not “fulfilled

all of the terms and conditions of the lease.” Bradberry responds that the trial court could have


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determined that Shields waived the late payment of the May 2012 rent and agreed to let the

extension take effect.

       Waiver is the “intentional relinquishment of a known right or intentional conduct

inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003)

(quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)).

       Waiver is largely a matter of intent, and for implied waiver to be found through a
       party’s actions, intent must be clearly demonstrated by the surrounding facts and
       circumstances. There can be no waiver of a right if the person sought to be
       charged with waiver says or does nothing inconsistent with an intent to rely upon
       such right.

Id. at 156–57 (citations omitted).

       Shields argues there was no waiver because its conduct in accepting the monthly rent

payments after May 2012 of $3,000 per month was consistent with its assertion that the lease had

expired and Bradberry had become a month-to-month tenant with rent of $3,000 per month.

However, in this case, it is Shields’s conduct by accepting the May 2012 rent that is relevant, not

its later conduct. The trial court could have found that Shields’s acceptance of the late May rent

payment without protest constituted acceptance of the payment as fulfilling the obligations under

the lease. The trial court could have determined that if Shields had meant to accept the late

payment but also object to the lack of compliance with the lease’s requirement of timely

payment, Shields would have had to do something, such as impose late fees or declare the lease

in default, indicating that the late payment did not constitute compliance with the lease. The trial

court could have found that Shields’s conduct of accepting the late May 2012 rent payment

without protest was not consistent with an assertion that Bradberry had failed to fulfill the

obligations of the lease. Because Bradberry had previously given Shields timely notice of his

intent to exercise the extension option, the extension took effect.




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       Shields also argues that, even if the extension took effect, Bradberry was in default

because he failed to pay the amount of rent due under the extension provision. The 2005

amendment to the lease stated that the rent under the extension provision would be $3000 per

month adjusted by changes in the CPI since 2007. The monthly rent for each year from June to

May was to be calculated annually by multiplying $3,000 by the CPI for April of that year,

dividing that number by the CPI for April 2007, and rounding that number to the nearest

five-dollar increment. Shields’s attorney asked the trial court to take judicial notice that the CPI

for April 2012 was 230.085 and that the CPI for April 2007 was 206.686. Applying those

numbers to the rent formula in the 2005 amendment shows the rent for June 2012 through May

2013 was $3,340 per month. It was undisputed that Bradberry continued to pay rent of only

$3,000 per month after May 31, 2012. Therefore, Bradberry failed to pay the full amount of rent

due under the lease from June 1, 2012, through May 31, 2013. Shields accepted the rent

payments of $3000 per month without protest as to the amount. The amount of the rent would

have been adjusted again for rent due June 1, 2013, through May 31, 2014, based on the CPI for

April 2013. However, Shields presented no evidence of the CPI for April 2013. With no

evidence of the CPI for April 2013, Shields could not prove the amount of rent due from June 1,

2013, until December 31, 2013, when Shields required Bradberry to vacate the premises.

Therefore, Shields failed to prove conclusively that Bradberry owed any more rent than what he

had paid when Shields declared the lease terminated for failure to pay the rent as adjusted by the

CPI.

       Shields also argues that if the extension took effect, then Bradberry was in default

because he failed to pay his pro rata share of the property taxes. The 2005 amendment to the

lease stated, “from June 1, 2012, on, Tenant shall pay his full pro rata share (3,500/12,417ths) of

the property taxes on the entire premises when billed by Principal Realtor or Landlord.” It is

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undisputed that Shields never billed Bradberry for the property taxes and that Bradberry never

paid the property taxes. Because the lease did not require Bradberry to pay the property taxes

until he was billed for them, his failure to pay the taxes when Shields never billed him for them

was not a breach of the lease.

       We conclude Shields has not conclusively established that Bradberry and 40/40 had no

right to possession of the premises. We overrule Shields’s issue on appeal.

                                        CONCLUSION

       We affirm the trial court’s judgment.




                                                  /Lana Myers/
                                                  LANA MYERS
                                                  JUSTICE

140258F.P05




                                               –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

SHIELDS LIMITED PARTNERSHIP,                           On Appeal from the County Court at Law
Appellant                                              No. 5, Dallas County, Texas
                                                       Trial Court Cause No. CC-14-00541-E.
No. 05-14-00258-CV         V.                          Opinion delivered by Justice Myers. Justices
                                                       Fillmore and Evans participating.
BOO NATHANIEL BRADBERRY AND
40/40 ENTERPRISES, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees Boo Nathaniel Bradberry and 40/40 Enterprises recover
their costs of this appeal from appellant Shields Limited Partnership.


Judgment entered this 23rd day of June, 2015.




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