                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00065-CV


TWI XVIII, INC. AND TEXAS                                    APPELLANTS
WINGS, INC.

                                           V.

CHRISTOPHER S. CARROLL                                          APPELLEE
NUMBER 1, LTD.


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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              MEMORANDUM OPINION1 ON REHEARING

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      We have considered appellants TWI XVIII, Inc. and Texas Wings, Inc.‘s

motion for rehearing. We deny the motion but withdraw our February 7, 2013

opinion and substitute the following.




      1
       See Tex. R. App. P. 47.4.
      Appellants TWI and Texas Wings appeal the trial court‘s judgment

awarding Christopher S. Carroll Number 1, Ltd. (Carroll) $869,950 for TWI‘s

breach of a lease between it and Carroll. We affirm.

                               Background Facts

      In June 1998, Carroll and TWI entered into a lease agreement for property

in Lewisville, Texas, where TWI planned to operate a Hooters restaurant. TWI

operated the restaurant until August 2008. At that time, TWI notified Carroll that

it was exercising its option to renew the lease. TWI then offered to buy the

premises, but the parties could not agree on a purchase price. The parties then

tried to negotiate a fair market rent for the renewal lease term, but they again

failed to reach agreement. Because they could not agree on rent, TWI notified

Carroll that it would be vacating the leased premises on August 31, 2008.

      In January 2009, Carroll sued TWI for breach of contract and sought a

declaratory judgment stating that TWI was bound by its renewal of the lease and

was obligated to pay rent under the contract. Carroll joined Texas Wings in the

action, claiming that Texas Wings had ―agreed to guarantee performance of all

liabilities, obligations[,] and duties imposed upon Defendant TWI by the Lease.‖

      Carroll then filed a motion for partial summary judgment, which the trial

court granted. The trial court found that TWI had exercised its option to renew

the lease and that it had breached the lease by vacating the property and failing

to pay rent. On November 15 and 16, 2011, trial was held on the remaining




                                        2
claims. The trial court found in favor of Carroll and ordered that TWI and Texas

Wings were jointly and severally liable to Carroll for $869,950.

      TWI and Texas Wings filed a request for findings of fact and conclusions of

law on December 9, 2011, and a notice of past due findings of fact and

conclusions of law on January 6, 2012. The trial court filed its findings of fact and

conclusions of law on January 18, 2012. On January 31, 2012, TWI and Texas

Wings filed a ―Request for Amended and Additional Findings of Fact and

Conclusions of Law.‖ They requested that the trial court amend two findings of

fact, remove one conclusion of law, file two additional findings of fact, and file

additional findings of fact and conclusions of law addressing twelve different

issues.   The trial court then entered two additional findings of fact and one

additional conclusion of law.

      On February 14, 2012, TWI and Texas Wings filed another request for

additional findings of fact and conclusions of law. They requested additional

findings and conclusions on twelve different specified categories of damages.

The trial court did not enter any additional findings of fact and conclusions of law.

TWI and Texas Wings then filed this appeal.

                                    Discussion

1. Findings of fact and conclusions of law

      In the appellants‘ first issue, they claim that the trial court committed

harmful error by refusing to file findings of fact and conclusions of law specifically

related to each of the ten grounds of recovery that Carroll had pleaded.


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      The trial court issued its findings and conclusions on January 18, 2012.

Finding number 6 stated, ―Based on the evidence at trial, the Court found that

[Carroll] had suffered damages as a result of TWI[‘s] breach of the lease in the

amount of $869,950.00 including reasonable and necessary attorneys‘ fees

incurred by [Carroll].‖ TWI and Texas Wings timely filed a request for amended

and additional findings and conclusions stating, ―Defendants hereby ask the

Court to file additional findings of fact and conclusions of law addressing the

following,‖ and listed twelve categories of damages, including unpaid rent, the

difference between the amount of rent paid by the replacement tenant and the

amount of rent that TWI should have paid, unpaid taxes, late fees, unpaid

maintenance fees, broker‘s commissions, finish-out costs, contractual interest,

unpaid premiums, costs, and attorneys‘ fees.

      The court filed additional findings and conclusions that included additional

finding of fact number 14, which stated,

             Based on the evidence at trial, the Court found that Plaintiff
      had suffered damages resulting from TWI[‘s] breach of the lease
      including the elements of damage listed below from which the total
      amount of damages awarded was found. These damages together
      with Plaintiff‘s reasonable and necessary attorneys‘ fees and
      expenses were aggregated and this aggregated amount was
      awarded to the Plaintiff in the Court‘s final judgment. The following
      elements of damage together with reasonable and necessary
      attorneys‘ fees and expenses were considered by the Court in its
      determination of Plaintiff‘s total recovery:

             A. Unpaid ―rent‖ from September 1, 2008 until Landlord began
      receiving rent from a replacement tenant . . . .




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            B. The difference between amount of rent paid by [the]
      replacement tenant and the amount of ―rent‖ that should have been
      paid by TWI . . . from September 1, 2008 until the end of the renewal
      term of the Lease. . . .

            C. Reimbursement to Plaintiff for unpaid taxes [that] were due
      from TWI . . . .

            D. Late fees [that] had become due under the terms of the
      lease and which had not been paid by TWI . . . .

            E. Unpaid maintenance fees [that] had become due under the
      terms of the lease and which had not been paid by TWI . . . .

             F. Reasonable and necessary Broker‘s Commissions paid by
      Plaintiff in obtaining a replacement tenant.

            G. Amounts, if any, which in reasonable probability will
      become due in the future by Plaintiff for finish-out of the property . . .
      to the extent such reimbursement obligation was reasonably and
      necessarily undertaken by Plaintiff to obtain a replacement tenant to
      occupy the Lease premises during the un-expired term of the Lease.

             H. Contractual interest [that] had become due under the terms
      of the lease and which had not been paid by TWI . . . .

      TWI and Texas Wings‘s second request for additional findings of fact

requested that the trial court file ―additional findings of fact and conclusions of law

identifying the specific amount of damages awarded by the Court for each of the‖

same categories of damages listed in their first request for additional findings and

conclusions. This second request was filed twenty-seven days after the trial

court signed its original findings of fact and conclusions of law. The second

request was therefore untimely under the rules of civil procedure. See Tex. R.

Civ. P. 298 (requiring requests for additional or amended findings of fact and

conclusions of law to be filed within ten days after the filing of the original findings


                                           5
and conclusions by the court). While the rule implies that more than one request

may be made, see id. (stating that ―[e]ach request‖ for additional findings and

conclusions must be served on each party), it also specifies that the timeliness of

every request must be calculated from the filing of the original findings and

conclusions filed by the trial court. TWI and Texas Wings had the opportunity to

specify to the trial court exactly what additional findings and conclusions they

wished were filed, and indeed, they took advantage of that opportunity by filing

their first request with seventeen specific amendments and additional requests.

The trial court filed the additional findings, which directly addressed the

appellants‘ requests. Clearly, the appellants were dissatisfied that the trial court

did not itemize its damage award, but their first request for additional findings did

not request a specific breakdown, and the trial court was therefore not required to

provide one. See Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 887 (Tex. App.—

Houston [1st Dist.] 1988, no writ) (―Generally, the balance of the appellant‘s

requested findings of fact seek to obtain more specific findings than the court had

made in its initial findings.    Although the trial court could have made more

findings of fact, we can find nothing in [rule] 296 that requires a trial court to

make findings of fact with such specificity as the appellant requested in the

instant case.‖). The trial court did not err by failing to file additional findings. We

overrule the appellants‘ first issue.




                                          6
2. Unpleaded relief

      In their second issue, the appellants argue that the trial court erred in

awarding postjudgment interest because Carroll did not plead to recover it.

Postjudgment interest is recoverable on any money judgment in this state as long

as the judgment specifies the postjudgment interest rate. Tex. Fin. Code Ann.

§ 304.001 (West 2006); see RAJ Partners, Ltd. v. Darco Constr. Corp., 217

S.W.3d 638, 653 (Tex. App.—Amarillo 2006, no pet.) (―[P]ostjudgment interest is

mandated by statute, and is recoverable even if the trial court's judgment does

not mention it.‖).   Statutory interest may also be predicated on a prayer for

general relief. Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex. 1987).

Carroll was therefore not required to specifically plead for postjudgment interest.

For that reason, the trial court did not err in granting postjudgment interest; we

overrule the appellants‘ second issue.

3. The guaranty

      In their third issue, the appellants claim that the trial court erred by finding

that Texas Wings guaranteed the lease. The guaranty agreement states,

      In order to induce [Carroll] . . . to execute the Lease Agreement
      made effective as of the 19th day of June, 1998, (the ―Lease‖) to
      TEXAS WINGS, INC. for that certain Leased Property situated in the
      City of Lewisville, Texas, for the operation of a Hooter‘s restaurant,
      more particularly described on Exhibit ―A‖ hereto, the undersigned
      (whether one or more than one) has guaranteed and by this
      instrument does hereby guarantee the payment and performance of
      all liabilities, obligations[,] and duties (including, but not limited to,
      payment of rent) imposed upon Tenant under the terms of the
      Lease . . . .



                                          7
The appellants argue that the guaranty refers to a lease between Carroll and

Texas Wings, but the lease at issue is between Carroll and TWI. They also claim

that the lease referred to in the guaranty was to be attached as Exhibit A, but the

guaranty that Carroll submitted into evidence has no Exhibit A attached to it.

      We construe a guaranty as any other contract. Mid-South Telecomm. Co.

v. Best, 184 S.W.3d 386, 390 (Tex. App.—Austin 2006, no pet.). In construing a

written contract, the primary concern of the court is to ascertain the true

intentions of the parties as expressed in the instrument. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). Courts should examine the entire

writing ―to harmonize and give effect to all the provisions of the contract so that

none will be rendered meaningless.‖ Id. Contact terms are given their plain,

ordinary, and generally accepted meanings unless the contract itself shows them

to be used in a technical or different sense. Id. ―We construe contracts ‗from a

utilitarian standpoint bearing in mind the particular business activity sought to be

served‘ and ‗will avoid when possible and proper a construction [that] is

unreasonable, inequitable, and oppressive.‘‖ Frost Nat’l Bank v. L & F Distribs.,

Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (quoting Reilly v. Rangers Mgmt., Inc.,

727 S.W.2d 527, 530 (Tex. 1987)). We must look at all of the contract‘s parts

together and be ―particularly wary of isolating from its surroundings or

considering apart from other provisions a single phrase, sentence, or section of a

contract.‖ State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995).




                                         8
We presume that the parties to a contract intend every clause to have some

effect. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).

      The appellants argue that the rule of strictissmi juris requires that the

guaranty be strictly construed and that it may not be extended by construction or

implication beyond its precise terms. See Vastine v. Bank of Dallas, 808 S.W.2d

463, 464 (Tex. 1991). They claim that because the guaranty refers to a lease

between Carroll and Texas Wings, it cannot be construed to mean a lease

between Carroll and TWI. However, the rule of strictissmi juris only applies when

ordinary rules of contract construction render the parties‘ obligations uncertain or

ambiguous. JMW Partners, L.P. v. Northstar Bank of Tex., No. 02-09-00167,

2010 WL 2331399, at *4 (Tex. App.—Fort Worth June 10, 2010, no pet.); Pham

v. Mongiello, 58 S.W.3d 284, 288 (Tex. App.—Austin 2001, pet. denied).            A

contract is ambiguous when its meaning is uncertain and doubtful or when it is

reasonably susceptible to more than one meaning. JMW Partners, 2010 WL

2331399, at *4; Pham, 58 S.W.3d at 288. That the parties to a contract disagree

over the interpretation of the contract does not necessarily render it ambiguous.

Pham, 58 S.W.3d at 288.        Likewise, uncertainty or a lack of clarity in the

language used in the contract does not automatically render it ambiguous. Id.

And an ambiguity does not arise simply because the parties advance conflicting

interpretations; rather, for an ambiguity to exist, both interpretations must be

reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861

(Tex. 2000); Sefzik v. Mady Dev., L.P., 231 S.W.3d 456, 460 (Tex. App.—Dallas


                                         9
2007, no pet.). An ambiguity exists only after application of established rules of

interpretation leaves an agreement susceptible to more than one reasonable

interpretation. DeWitt County Elec. Coop. Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.

1999).

      Looking at the contract as a whole, it is clear that the intent of the guaranty

was that Texas Wings would guaranty the lease between Carroll and TWI for the

Lewisville Hooter‘s restaurant. The appellants‘ construction, that Texas Wings

was guarantying its own performance under a lease between itself and Carroll, is

not a reasonable interpretation. The guaranty was submitted into evidence as

―Exhibit D‖ to the lease for the Lewisville Hooters.     Section 4.1 of the lease

states, ―As additional security, Texas Wings, Inc., shall irrevocably and

unconditionally guaranty [TWI]‘s obligation to [Carroll] under this Lease in the

form attached hereto as Exhibit ―D.” The lease was signed on June 19, 1998 by

John N. Crowder, as President of TWI. Following the lease was Exhibit A, a

description of the Lewisville property; Exhibit B, a list of attached personal

property on the Lewisville property; Exhibit C, an ―Acknowledgment of Rent

Commencement Date‖; Exhibit D, the guaranty; and Exhibit E, an insurance

policy.   The guaranty agreement was also signed by John N. Crowder, as

Treasurer of Texas Wings, on the same day as he signed the lease. The lease,

guaranty, and Exhibits A–D all have a footer that states ―Hooter‘s Lewisville

Lease.‖ Further, to construe the guaranty to say that Texas Wings did not

guaranty the lease between TWI and Carroll would render meaningless section


                                        10
4.1 of the contract, which states that Texas Wings ―irrevocably and

unconditionally guarant[eed] [TWI]‘s obligation to [Carroll] under this Lease.‖

      The appellants‘ argument that the guaranty should have had an ―Exhibit A‖

attached to it, which would presumably describe some other Lewisville Hooters

leased to Texas Wings, is also unconvincing.        The guaranty states that it is

applicable to ―that certain Leased Property situated in the City of Lewisville,

Texas, for the operation of a Hooter‘s restaurant, more particularly described on

Exhibit ‗A‘ hereto.‖   It does not say that there is an exhibit attached to the

guaranty; it refers to the Exhibit A to the lease to which the guaranty agreement

is attached as Exhibit D. Exhibit A to the lease describes the Lewisville Hooter‘s

location at issue in this case.

      Construing the guaranty under the established rules of contract

interpretation leaves only one reasonable interpretation, that the lease and the

guaranty are part of the same transaction, and we construe them together. See

id. at 102.      The guaranty, signed by Texas Wings, guaranteed TWI‘s

performance under the Lewisville Hooter‘s lease. We overrule the appellants‘

third issue.2




      2
        Because we agree with the trial court‘s conclusion of law number 11—that
the guaranty was unambiguous—we do not need to address the arguments
raised in the appellants‘ reply brief that contend that Carroll was required to plead
mistake or ambiguity.


                                         11
4. Attorneys’ fees

      The appellants claim in their fourth issue that Carroll failed to prove the

amount of reasonable attorneys‘ fees that it incurred. They argue that Carroll

failed to segregate the recoverable fees from fees for claims for which fees are

not recoverable. The appellants did not object at trial, but they did object in their

motion for new trial. However, they did not explain which claims should have

been segregated or why the fees related to the suit against TWI should have

been segregated from the fees related to the suit against Texas Wings.3 On

appeal, the appellants‘ argument appears to be premised on their contention that

Texas Wings was not liable to Carroll for TWI‘s breach of the contract. We have

held, however, that it is. While we acknowledge that if Carroll had not recovered

against one party or on one claim, it would have had to segregate its fees absent

a showing that the claims were inextricably intertwined, see NP Anderson Cotton

Exchange, L.P. v. Potter, 230 S.W.3d 457, 467 (Tex. App.—Fort Worth 2007, no

pet.), that is not case here.

      Carroll sued the appellants for breach of contract and sought declaratory

relief, both of which allow for the recovery of attorneys‘ fees. See Tex. Civ. Prac.


      3
       This is not to say that it was the appellants‘ burden to demonstrate that
segregation was required. The party seeking to recover attorneys‘ fees bears the
burden of demonstrating that segregation was not required.            Clearview
Properties, L.P. v. Prop. Texas SC One Corp., 287 S.W.3d 132, 144 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied).




                                         12
& Rem. Code Ann. §§ 37.009, 38.001(8) (West 2008). Further, Carroll sued both

appellants on the same contract; it sued TWI for its breach of the lease, and it

sued Texas Wings because it guaranteed TWI‘s performance under the lease.

Carroll‘s prosecution of its claims against the appellants ―entail[ed] proof or denial

of essentially the same facts,‖ Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d

1, 11 (Tex. 1991), and Carroll was therefore not required to segregate its fees,

see id. We overrule the appellants‘ fourth issue.

                                    Conclusion

      Having overruled TWI and Texas Wings‘s issues on appeal, we affirm the

trial court‘s judgment.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: April 11, 2013




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