AFFIRMED in part; REVERSE and REMAND in part; and Opinion Filed December 20,
2019




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-19-00224-CV

CHRISTINE FLORES DESIO D/B/A PROFESSIONAL CENTER OF GRAND PRAIRIE
  AND FRANCIS ANTHONY DESIO, JR. A/K/A FRANK DESIO, INDIVIDUALLY,
                              Appellants
                                 V.
 MIKE DEL BOSQUE D/B/A INJURY AND REHAB CENTER IN GRAND PRAIRIE,
                               Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-04408

                             MEMORANDUM OPINION
                         Before Justices Schenck, Molberg, and Reichek
                                   Opinion by Justice Reichek
       This case involves competing claims in a commercial lease dispute. Following a bench

trial, the trial court found Christine Flores Desio d/b/a Professional Center of Grand Prairie and

Francis Anthony Desio, Jr. a/k/a Frank Desio Jr., breached several leases but awarded no damages

to the tenant, appellee Mike Del Bosque d/b/a Injury and Rehab Center in Grand Prairie. The trial

court did, however, award attorney’s fees to appellee.

       On appeal, appellants challenge the trial court’s determination that they, rather than

appellee, breached the leases, as well as the award of attorney’s fees. For reasons set out below,
we affirm the trial court’s judgment that appellants breached the leases but reverse the award of

attorney’s fees and remand for the trial court to recalculate the amount of such fees.

                                     FACTUAL BACKGROUND

       Christine Flores Desio owns the Professional Center of Grand Prairie; her son, Frank,

manages the property. Appellants entered into multiple leases with appellee. One lease was for

property on the first floor and ended in 2018(the “First-Floor Lease”). Three leases were for

second-floor suites (the “Second-Floor Leases”) and ended in 2019.

       This appeal primarily deals with the Second-Floor Leases, where appellee operated

medical labs and “administrative and other related business.”           Under these leases, appellee

defaulted if he abandoned the premises. Abandonment was defined as “[f]ailure of Tenant for five

(5) days or more to occupy the Premises for one or more of the purposes permitted under this lease,

unless such failure is excused under other provisions of this Lease.”

       On Monday, November 28, 2016, appellee sent appellants the following email:

       Good morning, Frank….

       Hope your mother & yourself had a wonderful Thanksgiving….I want to inform
       you that my lease space upstairs was moved out over the holiday….I am NOT
       breaking the lease but I would to [sic] offer you to let the lease dissolve so that you
       could rent it out for more than what I am paying…Everything is shut down and
       completely turned off…I do have several items that I need to get out this
       week…Also, there are 3 refrigerators in the walk way that will be removed
       today….Thank yoy [sic]…

The following day, appellants excluded appellee from the second-floor premises, changed the

locks, and thereafter disposed of the property left on the premises. No notice was given before

appellants locked appellee out.

       Four months later, appellants locked appellee out of his first-floor suite for failure to pay

rent. Appellee obtained a writ of reentry into the premises and resumed operations. Nine days

later, however, appellee was locked out again.


                                                 –2–
          Following the second lockout of the first-floor suite, appellee filed this lawsuit against

appellants, alleging breach of contract, interference with existing contract, interference with

prospective contracts, trespass, and conversion. Appellee sought damages and attorney’s fees.

Appellants filed an answer in which they raised the affirmative defense of failure to mitigate

damages and also counterclaimed for breach of contract.                                    Appellants alleged that appellee

defaulted on all of the leases by (1) abandoning the second-floor premises and failing to pay rent

and (2) damaging and failing to maintain the first-floor premises. They sought to recover unpaid

lease payments, late fees, returned check charges, and unpaid prorated utilities and taxes, repair

costs for damages to both the first- and second-floor premises, and mitigation expenses. In

addition, they sought recovery of their attorneys’ fees.

          The case was tried without a jury to the court. Frank Desio testified that he did not know

how many days appellee spent moving out of the second-floor premises but said he “recognized”

activities prior to Thanksgiving that “suggested” appellee abandoned the property. In particular,

he said he saw appellee’s brother moving an executive chair from the premises on the day before

Thanksgiving Day. After the staff had left for the day, he said he went upstairs and saw that there

“was no equipment, no furniture, nothing to indicate that there was an active business.”

          Nevertheless, Frank also acknowledged that on the following Monday, November 28, he

observed appellee moving belongings from the second-floor suites. On that same morning, he

received appellee’s email about moving out. After receiving the email, Frank contacted counsel,

who advised him to “watch and see, touch nothing, do nothing,” and to “wait a minimum of seven

to ten days” to act. The next day, both appellee and Frank called the Grand Prairie police when

appellee returned but was excluded from the premises.1 By the following day, the locks on the



      1
        The police call notes show that appellee complained that he was being locked out of the premises because he gave notice he was moving
out, even though he had paid rent.

                                                                   –3–
suite doors had been changed. Subsequently, Frank called the scrapyard to retrieve appellee’s

property. Frank acknowledged that at the time of the lockout, appellee had paid rent for both

November and December and had offered to continue to pay rent for the premises. Frank

acknowledged that he did not give appellee notice before locking him out of the premises, but two

months after the lockout, appellants gave appellee notice of default for failure to pay rent in

January.

       Appellee testified that he was in the process of moving on Monday, November 28, and, in

contrast to Frank’s testimony, said he left behind a copier, office furniture, and office supplies but

had moved the lab equipment by that date. He said he did not intend to abandon the second-floor

leases; rather, as his business grew, he planned to use them for physician offices and storage space,

uses he believed were consistent with the terms of the leases. At trial, he testified he told Frank

he wanted to continue to use the space, although he acknowledged that he testified to the contrary

at his deposition.

       Appellee said he never had access to the premises once the locks on the doors were

changed. He also said he told Frank that he would pick up the refrigerators, which were left in the

breezeway area, within 24 hours, and Frank told him he had “three days.” Nevertheless, appellee

said the refrigerators were “gone” on the second day. He did not know what happened to the copy

machine, office furniture, and office supplies left inside the suites. He valued the copier at $2000,

the refrigerator at “a couple of hundred dollars each,” and the office furniture and supplies at $200

to $300.

       At the conclusion of the evidence and after hearing argument, the trial court made oral

findings that appellee abandoned the lease but was entitled to twenty days’ notice under the leases,

which he did not receive. Further, the court found that appellee was the “prevailing party

predominantly” and announced its intent to award attorney’s fees. The court directed appellee to

                                                 –4–
provide appellants with his attorney’s fee information, so that appellants could make any

objections.

           Subsequently, the trial court rendered judgment in which it found in favor of appellee on

(1) on appellee’s claims for breach of contract, interference with existing contract, interference

with prospective contracts, trespass to real property, and conversion; (2) appellants’ claim for

breach of contract; (3) appellants’ affirmative defense of failure to mitigate damages; and (4)

appellees’ affirmative defense of prior material breach. Appellee elected to recover on his breach

of contract claim. The trial court awarded appellee zero damages, but ordered that he recover

$75,033 in attorney’s fees and conditional attorney’s fees of $30,000 for an appeal to this Court,

and another $30,000 for an appeal to the Supreme Court.

           One month later, the trial court signed written findings that were contrary to its oral

pronouncements, i.e., that appellee abandoned the premises. As relevant here, the trial court found

that appellee (1) moved out some of his equipment from the second-floor premises on or about

Monday, November 28, 2016, and left three refrigerators, a copier, office furniture, and office

supplies at the premises; (2) had been moving for less than five days at the time of lockout of the

second-floor premises; and (3) did not leave the second-floor premises unoccupied for five days

or more prior to the time of the lockout. Further, the trial court found that (1) appellee was locked

out of the second-floor premises on or about Wednesday, November 30, 2016 when appellants

changed the locks;2 (2) appellants intentionally prevented appellee from entering the premises; and

(3) appellee was current on rent payments for November and had prepaid rent for December 2016.

           In conclusions of law, the trial court determined with respect to the Second-Floor Leases

that (1) appellee was not in default under any provision; (2) appellants breached the leases by

unlawfully locking out appellee; (3) appellee was entitled to recover zero damages; (4) appellee


   2
       In their brief, appellants assert they locked out appellee a day earlier, November 29, as shown by the police report.

                                                                       –5–
was entitled to recover reasonable and necessary attorneys’ fees on his breach of contract claim

against appellants as well as on appellants’ breach of contract counterclaim against him; and (5)

appellants did not comply with the obligations of the contract for the Second-Floor Leases. With

respect to the First-Floor Lease, the trial court concluded (1) appellee was not in default, (2)

appellants breached the lease, (3) appellee was entitled to zero damages for the breach; (4) appellee

was entitled to recover reasonable and necessary attorneys’ fees on both his breach of contract

claim against appellants and on appellants’ counterclaim against him; and (4) appellants did not

comply with the obligations of the lease. This appeal ensued.

       On appeal, appellants challenge the trial court’s liability findings only as to the Second-

Floor Leases and generally argue that (1) the trial court misconstrued the leases to require notice

for abandonment and (2) the evidence conclusively established that appellee breached the lease by

abandoning the second floor premises. Additionally, appellants argue the award of attorney’s fees

to appellee was improper because he was not a prevailing party, and, even if proper, the amount

was excessive.

                                         BREACH OF LEASE

       We begin with appellants’ argument that the trial court improperly rejected their breach of

contract claim for breach of the Second-Floor Leases.              Appellants argue the evidence

“conclusively refutes” the trial court’s determination that they breached the Second-Floor Leases

and conclusively showed that appellee breached when he abandoned the premises.

       In an appeal from a bench trial, the trial court’s findings of fact have the same weight as a

jury verdict. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.). When

the appellate record contains a reporter’s record, as in this case, findings of fact are not conclusive

and are binding only if supported by the evidence. Id. We review a trial court’s findings of fact




                                                 –6–
under the same legal and factual sufficiency of the evidence standards used when determining if

sufficient evidence exists to support an answer to a jury question. Id.

       When an appellant challenges the legal sufficiency of the evidence supporting an adverse

finding on an issue on which he had the burden of proof, he must show the evidence established

all vital facts as a matter of law. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699,

710 (Tex. App.—Dallas 2011, pet. denied). In this instance, we must credit evidence favorable to

the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable

factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If there is no

evidence to support the finding, we review the entire record to determine if the contrary proposition

is established as a matter of law. PopCap Games, 350 S.W.3d at 710. We sustain the issue only

if the contrary proposition is conclusively established––that is, if appellants conclusively

established that appellee abandoned the lease. See id.

       Here, appellants challenge the trial court’s findings that (1) appellee moved out some of

his equipment from the second-floor premises on or about Monday, November 28, 2016, and left

behind three refrigerators, a copier, office furniture, and office supplies; (2) on or about

Wednesday, November 30, appellee was locked out of the premises as appellants changed the door

locks; and (3) appellee did not leave the second-floor premises unoccupied for five or more days

prior to and at the time of the lockout. They argue the evidence showed appellee abandoned the

premises on November 23, the day before Thanksgiving.

       Abandonment required a showing that appellee failed to occupy the premises, for five days

or more, for one of the purposes permitted under the lease. As evidence of abandonment,

appellants direct us to appellee’s November 28 email that he “moved out over the holiday” and

Frank’s testimony that he saw staff moving furniture from the second floor on the day before

Thanksgiving (November 23), went upstairs afterwards, and saw that there was “no equipment, no

                                                –7–
furniture, or anything to indicate that there was any business activity.” They argue that this

evidence is conclusive proof that appellee had abandoned the premises for at least five days at the

time appellee was locked out “on or about November 29, 2016.”

           We cannot agree. Although appellee said he had “moved out over the holiday,” the email

does not constitute conclusive proof that appellee had moved out on November 23. And neither

does the cited portion of Frank’s testimony. As set out previously, both Frank and appellee

testified that appellee was continuing to move belongings out of the premises on November 28.

Appellee testified a copier, office furniture, and office supplies were still in his suites. The email

was notice to appellants on November 28 that “[e]verything” had been “shut down and completely

turned off” but that “several items” remained on the premises that appellee needed to retrieve.

This evidence, along with the fact that the “move out” was occurring over a long holiday weekend,

was sufficient for the trial court to reasonably determine that the premises had not been abandoned

for five days or more before the lockout, regardless of whether that occurred on November 29 or

30.

           To the extent appellants raise a factual sufficiency argument,3 we are similarly

unpersuaded. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam)

(explaining that when party attacks factual sufficiency of adverse finding on issue on which he had

burden of proof, party must demonstrate on appeal that adverse finding is against the great weight

and preponderance of the evidence). Neither Frank’s testimony nor appellee’s email render the

evidence so weak or the finding so against the great weight and preponderance of the evidence that

it is clearly wrong and unjust. Id.




     3
       In their brief, appellants provide a brief standard of review for factual sufficiency, but argue the evidence conclusively shows appellee
abandoned the premises. They ask us to reverse the judgment in favor of appellee and render judgment in their favor in the amount of $36,000 for
breach of the leases and remand for a determination of appellants’ attorney’s fees.

                                                                     –8–
           Finally, appellants devote a large portion of their briefing on this issue to the fact that the

trial court made an oral finding that subsequently conflicted with his written findings of fact. But

written orders or judgments control over conflicting oral pronouncements. Kaur-Gardner v.

Keane Landscaping, Inc., No. 05-17-00230-CV, 2018 WL 2191925, at *4 (Tex. App.—Dallas

May 14, 2018, no pet.) (mem. op.). The written findings and judgment reflect nothing more than

that the trial court changed its mind after oral pronouncement and before judgment. Having

concluded the evidence is legally and factually sufficient to support the trial court’s findings, we

overrule issues two and four. Our disposition of these issues makes it unnecessary to address

appellants’ first issue, which complains that the trial court misconstrued the lease to require them

to give 20 days’ notice when a tenant abandons the lease.

                                                           ATTORNEY’S FEES

           Appellants’ remaining issues attack the award of attorney’s fees under both the First- and

Second-Floor leases. With respect to attorney’s fees, the trial court made the following findings

of fact:

           52. Plaintiff retained the services of Tailim Song and the attorneys at Tailim Song
           Law Firm, promising to pay a reasonable attorney’s fee for said services.

           53. The total sum of $75,033.00 are reasonable and necessary attorneys’ fees for
           prosecuting Plaintiff’s claims for breaches of contracts and to defend Plaintiff from
           Defendants’ claims for breaches of contracts in Dallas County, Texas.

           In their third and fifth issues, appellants complain that appellee did not prevail on his breach

of contract claims because he was awarded no damages and thus cannot be awarded attorney’s

fees under the terms of the leases. In their sixth issue, they alternatively argue that the amount

awarded was excessive. We begin with appellants’ argument that appellee was not a “prevailing

party” under the leases because they were awarded zero damages.4


     4
       In his amended petition, appellee also sought attorney’s fees under chapter 38 of the Texas Civil Practice and Remedies Code. But, to
recover attorney’s fees under section 38.001, a party must prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover
damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Because appellee did not recover damages, the statute does not apply.

                                                                      –9–
       To resolve this issue, we consider both the language in the First- and Second-Floor Leases

and the relevant case law. Because the language regarding attorney’s fees is different in the First-

and Second- Floor Leases, we address each separately.

1. Second-Floor Leases

       The Second-Floor Leases all contain the same language with respect to attorney’s fees.

Section 29 provides:

       29.1 Attorney Fees. If this lease is placed in the hands of any attorney due to a
       default in the payment or performance of any of its terms, the defaulting party shall
       pay, immediately upon demand, the other party’s reasonable attorney fees,
       collection costs, costs of litigation, even though no suit or action is filed thereon,
       and any other fees or expenses incurred by the nondefaulting party.

       29.2 Types of Fees. For purposes of this Lease the term attorney fees includes
       all charges of the prevailing party’s attorneys and their staff (including without
       limitation legal assistants, paralegals, word processing, and other support
       personnel) and any post-petition fees in a bankruptcy court. . . .

       These provisions broadly allow for the recovery of attorney’s fees incurred by the

“nondefaulting” or “prevailing” party, against the party who defaulted on the lease, and regardless

of whether suit is actually filed and a judgment obtained. Here, the trial court determined, based

on the evidence, that appellee did not default on Second-Floor Leases and that appellants breached

the leases but awarded no damages.

       In Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019), also

a commercial lease case, the supreme court addressed whether a party, who did not recover

damages but defeated the defendant’s counterclaim, could be the “prevailing party” under the

lease. There, the tenant (UTSW) used the premises it leased from Rohrmoos for a dialysis clinic.

578 S.W.3d at 475. The building suffered significant water penetration, and UTSW viewed the

premises as unsuitable for its intended purpose, terminated the lease early, and vacated the

premises, while still allegedly owing about $250,000 in unpaid rent. Id. at 476. UTSW sued

Rohrmoos for breach of warranty and breach of the implied warranty of suitability. Rohrmoos

                                               –10–
counterclaimed for negligence and breach of contract. Each asserted affirmative defenses to the

others’ claims. Id. A jury ultimately determined that both parties breached the contract, but that

Rohrmoos breached first. UTSW did not submit a damage question, so it was awarded no

damages. The jury determined reasonable attorneys’ fees for UTSW, which the trial court

incorporated into the judgment. Id. 476–77. On appeal, Rorhmoos challenged the award of

attorney’s fees, arguing that UTSW was not a “prevailing party” and was therefore not entitled to

attorney’s fees.

       In Rohrmoos, the lease provided that “[i]n any action to enforce the terms of this Lease,

the prevailing party shall be entitled to an award for its reasonable attorneys’ fees.” Rohrmoos,

578 S.W.3d at 484. The contract, however, did not define prevailing party. Relying on its previous

opinion in Intercontinental Group Partnership v KB Home Long Star LP, 295 S.W.3d 650 (Tex.

2009), the court reiterated that to “prevail” means to “obtain actual and meaningful relief,

something that materially alters the parties’ legal relationship.” Id. at 485–86 (quoting KB Home,

295 S.W.3d at 659). Using that definition, the court reasoned UTSW was not just a plaintiff; it

also successfully defended against Rohrmoos’s breach of contract counterclaim and the trial court

rendered a take-nothing judgment in UTSW’s favor as a counter-defendant. Thus, the court

concluded, the jury’s finding and the trial court’s judgment “altered the legal relationship between

the parties,” meaning UTSW was a “prevailing party” under the lease. Id. at 486.

       Under the broad language of the Second-Floor Leases, we agree, as the court did in

Rohrmoos, that appellee was not just a plaintiff; he also successfully defended against appellants’

breach of contract counterclaim that sought unpaid lease payments and repair costs for damages

to the premises. In the findings of fact and in the judgment, the trial court found in appellee’s

favor as a counter-defendant. In doing so, the findings and judgment altered the legal relationship




                                               –11–
between the parties, and, under the reasoning in Rohrmoos, appellee is a “prevailing party” entitled

under these leases to reasonable and necessary attorney’s fees.

1. First Floor lease

       The First Floor lease provides as follows:

       30. Attorneys’ Fees.

       In the event either party shall fail to comply with any of the covenants, conditions,
       obligations, rules, or regulations imposed by this Texas Commercial Lease or the
       laws of the state of Texas, and suit is brought for damages or enforcement, the
       losing party shall pay to the prevailing party reasonable attorneys’ fees, costs, and
       expenses incurred in prosecuting these suits.

       This provision is unlike that in the Second-Floor Leases or Rohrmoos where the language

of the contracts was broad enough to include the successful defendant against a counterclaim as a

“prevailing party.” Here, the lease specifically requires that the attorneys’ fees be incurred by the

“prevailing party” in “prosecuting these suits.” “Prosecute” means “to institute legal proceedings

against” or “to institute and carry on a legal suit or prosecution: sue.” Prosecute, WEBSTER’S

THIRD NEW INT’L DICTIONARY UNABRIDGED (1981). Similarly, Black’s Law Dictionary defines

“prosecute” as “[t]o commence and carry out a legal action <because the plaintiff failed to

prosecute its contractual claims, the court dismissed the suit>.”        Prosecute, BLACK’S LAW

DICTIONARY (8TH ed. 1999). Thus, we read this provision to limit an award of attorney’s fees to

only those incurred by a prevailing plaintiff, not a counter-defendant, and conclude the analysis in

Rohrmoos regarding prevailing defendants does not apply. Instead, to determine whether appellee

was a prevailing plaintiff, we turn to the supreme court’s decision in KB Home.

       In KB Home, the court focused on whether a plaintiff prevailed for purposes of attorney’s

fees when the jury found the defendant violated the contract but awarded no money damages to




                                               –12–
the plaintiff. 5 295 S.W.3d at 652. The court explained that “[w]hether a party prevails turns on

whether the party prevails upon the court to award it something, either monetary or equitable.” Id.

at 655. KB Homes, however, “got nothing except a jury finding” that Intercontinental violated the

contract. Id. “It recovered no damages; it secured no declaratory or injunctive relief; it obtained

no consent decree or settlement in its favor; it received nothing of value of any kind, certainly none

of the relief sought in its petition.” Id. Nor did the outcome materially alter the legal relationship

between the parties. Id. The court thus concluded a stand-alone finding on breach of contract

confers no benefit, and a zero on damages “necessarily zeroes out ‘prevailing party’ status for KB

Homes.” Id. at 655–66.

           Here, appellee obtained nothing in the action he prosecuted other than a finding that

appellants breached the contract. Like KB Homes, the judgment did not award appellee any

damages, declaratory or injunctive relief, or any other thing of value. Under these circumstances,

we conclude the findings and judgment did not materially alter the legal relationship between the

parties. Appellee nevertheless relies on Rohrmoos to argue that he is the prevailing party on his

own breach of contract claims under a “main-issue analysis.” He directs us to the trial court’s

findings that (1) he did not breach either the First Floor or Second Floor leases, (2) he was entitled

to damages on his breach of contract claims regarding both First and Second Floor leases, (3) he

was entitled to his attorney’s fees for both his original breach of contract claims and for

successfully defending against appellants’ breach of contract counterclaims, and (4) he suffered

monetary damages from the breach of both the First and Second Floor leases but was awarded no

damages because he failed to establish them with “reasonable certainty.” But, as explained


     5
        The contract entitled the “prevailing party” to recover its attorney’s fees from the losing party, if either party brought an action to enforce
the terms of the contract. KB Home, 295 S.W.3d at 652. The jury found Intercontinental breached the written contract but awarded zero damages
and $66,000 in attorney’s fees. Further, the jury rejected Intercontinental’s oral-agreement claim. Id. Both parties claimed to be the “prevailing
party” and sought attorney’s fees. Id. The trial court ultimately awarded judgment in KB Home’s favor for $66,000. In considering the issue, the
court did not consider whether this language was broad enough to allow a counter-defendant to recover attorney’s fees as a prevailing party because
the issue was not preserved for review. KB Home, 295 S.W.3d at 659 (“The issue of whether a breaching-but-nonpaying defendant can be a
‘prevailing party’ under an attorney’s-fees provision like this is interesting legally, but not before us procedurally.”).

                                                                       –13–
previously, appellee could recover attorney’s fees under this lease only if he was the prevailing

plaintiff. So, even with the trial court’s liability findings, the problem remains that appellee did

not prove any damages and the failure to do so “necessarily zeroes out ‘prevailing party’ status

under the First Floor lease. Id. at 655–66.

       To the extent appellee asserts he is entitled to attorney’s fees because he obtained a

temporary restraining order at the time he filed his lawsuit, we again cannot agree. The purpose

of a temporary restraining order is to maintain the status quo between the parties. In re Newton,

146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding). It does not resolve the merits of the

underlying dispute. As the court said in KB Home, the judgment is critical to the prevailing-party

determination, and here, the judgment did not award any injunctive relief. 295 S.W.3d at 656. We

conclude appellee was not a prevailing plaintiff as required by the First-Floor Lease; consequently,

the trial court erred by awarding attorney’s fees on this claim.

       Finally, in two sentences, appellants assert they should be awarded their attorney’s fees as

to appellee’s claims under the First-Floor Lease. They assert that because appellee did not prevail

on his claim, they “substantially prevailed” under the terms of the lease. But for the same reasons

set out above, we conclude appellants also were not a prevailing plaintiff under the lease and reject

their argument.

       We conclude the First-Floor Lease agreement did not provide a basis for an award of

attorney’s fees under the circumstances here. Because the trial court awarded an aggregate sum

for attorney’s fees under both the First- and Second-Floor leases, and an award was improper under

the former, we sustain issues three and four in part. This disposition makes it unnecessary to

address the sixth issue.

       We reverse the trial court’s judgment with respect to the award of attorney’s fees and

remand this cause for the trial court to determine the amount of reasonable and necessary attorney’s

                                               –14–
fees to be awarded to appellee only as to the Second-Floor Leases. In all other respects, we affirm

the trial court’s judgment.




                                                  /Amanda L. Reichek/
                                                  AMANDA L. REICHEK
                                                  JUSTICE

190224F.P05




                                              –15–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CHRISTINE FLORES DESIO D/B/A                        On Appeal from the 14th Judicial District
 PROFESSIONAL CENTER OF GRAND                        Court, Dallas County, Texas
 PRAIRIE AND FRANCIS ANTHONY                         Trial Court Cause No. DC-17-04408.
 DESIO, JR. A/K/A FRANK DESIO,                       Opinion delivered by Justice Reichek;
 INDIVIDUALLY, Appellants                            Justices Schenck and Molberg participating.

 No. 05-19-00224-CV         V.

 MIKE DEL BOSQUE D/B/A INJURY
 AND REHAB CENTER IN GRAND
 PRAIRIE, Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment awarding attorney’s fees to appellee Mike Del Bosque d/b/a Injury and Rehab Center
in Grand Prairie, and we REMAND this cause to the trial court to determine the amount of
attorney’s fees to be awarded to appellee only as to the Second-Floor Leases. In all other
respects, the trial court’s judgment is AFFIRMED.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 20th day of December 2019.




                                              –16–
