      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-17-00292-CV



                              Barton Food Mart, Inc., Appellant

                                                v.

                                     Nejla Botrie, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. D-1-GN-15-005615, HONORABLE TIM SULAK, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Barton Food Mart, Inc. (BFM) appeals from a judgment in favor of its landlord,

Nejla Botrie. Botrie sought declaratory relief that BFM had defaulted on its lease and an award of

attorney’s fees. The trial court rendered judgment declaring that BFM had defaulted twelve times

and awarded Botrie $131,146.93 in attorney’s fees. For the reasons that follow, we will affirm.


                                       BACKGROUND

               Botrie owns a small shopping center located in Austin. In 2000, Shaukat Prasla and

Imtiyaz Dhuka took over the lease of a tenant that was operating a convenience store and reopened

as Barton Food Mart.1 In 2010, Botrie executed a new lease with Prasla’s corporation KLM




       1
        To avoid confusion, we refer to appellant as “BFM” and the physical store as “Barton
Food Mart.”
Enterprises, Inc., d/b/a/ Barton Food Mart (the Lease). Prasla signed the Lease as President of KLM

and executed a separate document personally guaranteeing KLM’s obligation to pay rent.

               Later the same year, KLM assigned the lease to BFM, a newly created corporation.

Prasla executed the assignment for both entities. Per the Lease and the assignment, Prasla’s

guarantee remained in effect. Four years later, BFM and Botrie executed an amendment extending

the lease term to 2020.


Barley Bean

               Botrie, a resident of Canada, employs Consolidated Management Solutions (CMS)

to manage the shopping center. CMS employees send Botrie monthly reports on the status of the

property. On March 3, 2015, Prasla emailed Botrie and two CMS employees, Carla Neel and

Diana Chastain, that BFM was:


               planning to introduce “BARLEY BEAN” at Barton Food Mart. This
               brand will include Coffee, Sandwich, and Pizza etc. I have attached
               lay out as to how this Deli counter will look like. We would like to
               put a small sign outside next to our regular sign. I have attached the
               logo [of the] sign.


Chastain replied:


               I have discussed these changes with Nejla.      The interior
               changes/addition of product sound like they will be a good
               complement to your current model.

               Unfortunately, we are unable to permit additional exterior signage at
               the property. The storefront facade is to be reserved for tenant specific
               (as named in the Lease) illuminated signage per the sign criteria. We



                                                  2
               can, however, permit an interior sign to be installed in the window as
               long as it is a clean, professional appearing sign.


               Botrie and Neel subsequently testified that they believed BFM would offer

pre-prepared Barley Bean food products and add a single Barley Bean sign to the interior of a

window. In July of 2015, CMS employees discovered that BFM added five signs advertising Barely

Bean and two exterior speakers. BFM modified the interior to add food preparation areas,

wall-mounted menus, a new sink and lighting fixtures, a television, and customer seating, and hired

two new employees to prepare food to order.


Lawsuit

               Article 23.1 of the Lease provides that certain circumstances “shall be deemed to be

events of default” and entitle Botrie to possession of the premises. Under article 23.1(b), BFM

defaults by violating a provision of the Lease (other than those applying to payment of rent) and

failing to cure the violation within fifteen days of receiving notice. By letter dated August 10, 2015,

Botrie notified BFM that it had violated nine provisions of the Lease and gave BFM fifteen days

to cure.

               On December 11, 2015, Botrie filed suit seeking declaratory relief that BFM had

violated the Lease by offering made-to-order food and making the modifications to the store

described above, and that each violation amounted to a default under article 23.1(b). BFM answered

and asserted promissory estoppel as a defense.

               In December of 2016, BFM deposed Chastain by agreement. BFM’s counsel asked

Chastain about some of her communications with Botrie. Botrie’s counsel objected that all of


                                                  3
Chastain’s communications with Botrie from February 2015 were “work product and therefore not

discoverable” and instructed Chastain not to answer. See generally Tex. R. Civ. P. 192.5. BFM’s

counsel then adjourned the deposition.

               In January of 2017, BFM filed an amended pleading asserting counterclaims for

tortious interference with present contracts, civil conspiracy, and suit for accounting, and requested

a declaration that it had not defaulted under article 23.1(b).

               Botrie filed a traditional and no-evidence summary judgment motion on all of BFM’s

counterclaims the following month.        In the same motion, Botrie moved to dismiss BFM’s

counterclaims for tortious interference and civil conspiracy under the Texas Citizens’ Participation

Act (TCPA). See generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. The trial court

granted the motion to dismiss on March 10, 2017. By separate order signed the same day, the trial

court granted summary judgment on the same counterclaims but denied relief as to the

other counterclaims.

               Fifteen days after the trial court’s ruling, BFM filed a motion to continue the trial

setting to resume Chastain’s deposition and a separate motion to compel. The trial court denied the

motion for a continuance but did not rule on the motion to compel.

               During this process both BFM and Botrie amended their pleadings to add additional

claims. On March 2, 2017—thirty-two days before trial—BFM filed an amended pleading adding

a counterclaim for breach of contract. Botrie filed a motion to strike and special exceptions. The

trial court denied the motion to strike but did not rule on the special exceptions.




                                                  4
               On March 6, 2017, Botrie filed an amended pleading requesting declaratory relief

stating that BFM had defaulted under article 23.1(a) by paying rent late. Article 23.1(a) provides that

BFM defaults if it pays rent late and does not correct the problem within five days of receiving notice

and that any subsequent failure in the following twelve-month period becomes a default with no

additional notice required. Botrie also sought an award of attorney’s fees under section 37.009 of

the Uniform Declaratory Judgment Act (UDJA) or article 23.7 of the Lease.

               On March 21, 2017, BFM filed another pleading asserting a counterclaim entitled

“fraud in a real estate transaction.” Botrie filed a separate motion to strike the fraud claim as

untimely. The trial court granted Botrie’s motion at the pretrial conference on April 3, 2017.2


Trial

               The parties agreed that the jury would decide whether BFM had defaulted under

article 23.1(b) of the Lease. After receiving the jury’s answers, the trial court would then decide

whether BFM had defaulted under article 23.1(a) and whether to award Botrie her attorney’s fees.

               BFM argued to the jury that the defaults Botrie alleged were excused by its reliance

on Botrie’s agreement—conveyed by Chastain in the email reproduced above—to allow BFM to

introduce Barley Bean and related signage into the store.

               The trial court submitted two questions to the jury. The first asked the jury to

individually decide whether seven of the alleged defaults had occurred. The second asked the jury


        2
          BFM added CMS as a third-party defendant in January 2017 and asserted civil conspiracy
and fraud causes of action against it as crossclaims. Botrie’s counsel appeared for CMS and filed
an answer but CMS did not explicitly join Botrie’s pretrial motions. In their briefs to us, the parties
treat the motions as joint. Regardless, the judgment is final because it expressly states that it
disposes of all claims and parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).

                                                  5
to decide whether any of the defaults that it found under the first question were excused by BFM’s

reliance on Botrie’s promise. The jury found that five of the seven defaults occurred but that three

of the above were excused.

                The trial court then heard argument concerning whether BFM defaulted by paying

rent late and on attorney’s fees. Botrie offered, and the trial court admitted, evidence reflecting that

CMS notified BFM by letter on January 13, 2016 that its rent was late and that BFM did not pay the

rent within the five-day period. The trial court admitted other communications from CMS reflecting

that it did not receive rental payments in subsequent months.

                The trial court signed a final judgment declaring that BFM had defaulted five times

under article 23.1(b), of which three were excused, and had defaulted ten times under article 23.1(a)

by paying rent late. The judgment awarded Botrie $131,146.93 in attorney’s fees under article 23.7

of the Lease and, “to the extent necessary,” under section 37.009 of the UDJA.

                BFM filed a timely motion for new trial. Seventy-one days after the trial court signed

the final judgment, BFM filed a motion to abate for defect in parties, a motion to dismiss for want

of jurisdiction, and a motion for judgment notwithstanding the verdict. The trial court allowed the

motion for new trial to be overruled by operation of law and never ruled on the remaining motions.

                BFM appeals from the final judgment in fifteen issues.


                                       BRIEFING WAIVER

                We first address Botrie’s assertions that BFM waived its issues through inadequate

briefing. An appellant’s brief “must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). Botrie argues


                                                   6
that BFM never cites to the reporter’s record and frequently omits the standard of review. Botrie is

correct about the deficiencies of BFM’s brief, but the Texas Supreme Court instructs us to be

“hesitant to find waiver and, when possible, construe briefing reasonably, yet liberally, so that the

right to appellate review is not lost by waiver.” Anderson v. Durant, 550 S.W.3d 605, 617 (Tex.

2018). We will address the merits of BFM’s issues to the extent possible. See Perry v. Cohen,

272 S.W.3d 585, 587 (Tex. 2008) (per curiam) (“[A]ppellate courts should reach the merits of an

appeal whenever reasonably possible.”).


                                     PRETRIAL RULINGS

                BFM challenges various pretrial and evidentiary rulings in its eighth through

twelfth issues.3


Tortious Interference and Civil Conspiracy

                BFM argues in its eleventh and twelfth issues that the trial court erred in granting

Botrie’s no-evidence motion for summary judgment in part and its motion to dismiss under

the TCPA.4


       3
           We address BFM’s issues in the chronological order in which they arose during the case.
       4
         Botrie argues that BFM waived its challenges to the trial court’s orders because BFM only
stated the date of the final judgment in its notice of appeal. See Tex. R. App. P. 25.1(d)(2)
(providing that notice of appeal must “state the date of the judgment or order appealed from”). More
information was not necessary because the trial court’s interlocutory orders merged into the final
judgment. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 924 & n. 10 (Tex. 2011). By
specifying that it was appealing from the final judgment, BFM preserved its challenge to the
interlocutory rulings. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) (holding
that appellants “were not required to state in their notice of appeal that they were challenging the
interlocutory order granting special exceptions” but only “the date of the judgment or order appealed
from—in this instance the order dismissing their suit”).

                                                 7
               In its eleventh issue, BFM argues that it did not have adequate time to conduct

discovery before the trial court granted summary judgment. See Tex. R. Civ. P. 166a(i) (authorizing

party to move for no-evidence summary judgment only “[a]fter adequate time for discovery”). We

review a trial court’s determination that there has been adequate time for discovery for an abuse of

discretion. Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 901 (Tex.

App.—Houston [14th Dist.] 2016, no pet.). A trial court abuses its discretion if it acts without

reference to guiding rules or principles. Bennett v. Grant, 525 S.W.3d 642, 653 (Tex. 2017), cert.

denied, 138 S. Ct. 1264 (2018).

               “[T]he rules do not mandate a minimum period of time a case must be pending before

a motion may be filed, as long as there was adequate time for discovery.” Restaurant Teams Int’l,

Inc. v. MG Sec. Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.). When analyzing

whether an abuse of discretion occurred we may consider the nature of the case, the materiality and

purpose of the discovery sought, the length of time the case and motion for summary judgment have

been on file, the amount of the discovery that has already taken place, and whether the party

requesting more time has exercised due diligence to obtain the discovery sought. Madison

v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); see Akhter

v. Schlitterbahn Beach Resort Mgmt., LLC, No. 03-13-00117-CV, 2013 WL 4516130, at *3 (Tex.

App.—Austin Aug. 22, 2013, no pet.) (mem. op.).

               Botrie contends that the length of time the case was on file strongly indicates that

there had been adequate time for discovery. This case had been on file for thirteen months when

Botrie filed her motion for summary judgment in February of 2017. The trial court granted the



                                                 8
motion in part the next month. See, e.g., Buholtz v. Field, No. 03-17-00232-CV, 2018 WL 700058,

at *4 (Tex. App.—Austin Jan. 31, 2018, pet. denied) (mem. op.) (finding no abuse of discretion

when case had been on file for six months when motion for summary judgment was filed and court

did not rule “until almost a year after”). BFM argues that the ruling was nevertheless premature

because BFM only discovered the need for more discovery during Chastain’s deposition in

December of 2016. According to BFM, the invocation of the work-product privilege by Botrie’s

counsel implied the existence of a plot between Botrie and CMS “to wrongfully evict [BFM] from

the leased premises by inducing it through promises and conduct to take certain actions which Botrie

would later claim amounted to defaults under the Lease.” Botrie responds that BFM’s failure to use

diligence to obtain information about this plan supports the trial court’s ruling. BFM filed several

amended pleadings in the following months but did not file a motion to compel Chastain’s

deposition or ask the trial court to rule on the asserted privilege even after Botrie filed her motion.

See Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 867 (Tex. App.—Houston [14th Dist.] 2017,

no pet.) (holding failure to file motion to compel discovery demonstrates lack of diligence); Akhter,

2013 WL 4516130, at *4 (stating that failure to utilize available discovery procedures showed lack

of diligence). On the record before us, we cannot say that the trial court abused its discretion. We

overrule BFM’s eleventh issue. We do not reach BFM’s twelfth issue because our resolution of

BFM’s eleventh issue makes it unnecessary to do so. See Tex. R. App. P. 47.1.




                                                  9
Motion for a Continuance

               Five days after the trial court ruled on Botrie’s motion for summary judgment and

motion to dismiss, BFM filed a verified motion for a continuance of the trial to obtain Chastain’s

deposition. BFM appeals the denial of that motion in its tenth issue.5

               We review a trial court’s ruling on a motion for a continuance for an abuse of

discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). When the

movant sought time to conduct additional discovery, we determine whether an abuse of discretion

occurred by considering the same nonexclusive factors relevant to whether adequate time for

discovery passed before summary judgment.          See Lee v. Lee, 528 S.W.3d 201, 221 (Tex.

App.—Houston [14th Dist.] 2017, pet. denied); D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs.,

416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.).

               BFM argues that denying the motion deprived it of its only opportunity to obtain

evidence from Chastain. As discussed in our analysis of BFM’s eleventh issue, nothing in the record

indicates that BFM acted to resume Chastain’s deposition until BFM filed its motion to compel four

months after the end of the deposition. BFM also fails to explain why the substance of Chastain’s

testimony was unobtainable through other witnesses. Carla Neel, Chastain’s supervisor, testified

extensively at trial regarding the relationship between Botrie, CMS, and BFM. We conclude that

the trial court did not abuse its discretion in denying BFM’s motion for a continuance. See Rocha



       5
          BFM simultaneously filed a separate motion to compel Chastain’s deposition and requested
that the trial court rule that Botrie’s communications with Chastain were not privileged. The trial
court denied the motion for a continuance by written order but never ruled on the motion to compel.
Because the trial court neither ruled on nor refused to rule on the motion to compel, we conclude that
BFM failed to preserve error, if any. See Tex. R. App. P. 33.1(a).

                                                 10
v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.) (“A party who fails to diligently

use the rules of discovery is not entitled to a continuance.” (citing State v. Wood Oil Distrib., Inc.,

751 S.W.2d 863, 865 (Tex. 1988))). We overrule BFM’s tenth issue.


Evidentiary Issues

               BFM argues in its eighth issue that the trial court erred by allowing Botrie to put on

evidence of the condition of Barton Food Mart on any date except for December 11, 2015. In its

ninth issue, BFM argues that the trial court abused its discretion when it excluded evidence of

damages on its breach-of-contract counterclaim. We review a trial court’s evidentiary ruling for an

abuse of discretion. Southwestern Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727

(Tex. 2016).


               Admission of Botrie’s Evidence

               Shortly after the beginning of trial, BFM filed a motion to exclude any evidence of

the condition of Barton Food Mart on any date other than December 11, 2015, which is the date the

lawsuit was filed. According to the motion, Botrie “temporally narrowed the scope of this lawsuit

to the condition of the property” by her discovery answers.

               BFM based this argument on Botrie’s answers to Interrogatories 9 and 10. Those

interrogatories concerned Botrie’s allegations that BFM violated provisions of the Lease requiring

it to keep the premises “neat and clean” and to ensure it does not “have an unsightly appearance.”

In both interrogatories, BFM asked Botrie to “identify each manner (by time, date, and the nature

of the incident) by which [BFM] has caused” the premises to violate either provision “since



                                                  11
December 1, 2014.” Botrie objected to both as seeking irrelevant information because her suit “is

based on the state of the Demised Premises as of the date that the lawsuit was filed. The appearance

of the Demised Premises at any other time has no bearing.” BFM cites to no support for this

assertion. We conclude that BFM waived this issue through inadequate briefing. See Tex. R. App.

P. 38.1(i) (providing that an appellant’s brief must contain “appropriate citations to authorities”).


               Exclusion of BFM’s Evidence

               BFM next argues that the trial court erred by excluding evidence of BFM’s damages

from Botrie’s alleged breaches of the Lease. Dhuka—BFM’s corporate representative—testified at

trial that Botrie allegedly breached the Lease by not maintaining the shopping center’s common area,

among other violations, but was unable to provide any estimate of BFM’s damages. The next day,

BFM asked for leave to allow Dhuka to testify to BFM’s damages, and Botrie objected on several

grounds. BFM argues that sustaining the objection was an abuse of discretion because Botrie

“opened the door” by its cross-examination.        See generally Service Corp. Int’l v. Guerra,

348 S.W.3d 221, 234 (Tex. 2011) (observing that “a party may not complain on appeal of the

admission of improper evidence if the party ‘opened the door’ by introducing evidence that is the

same or similar in character”). BFM does not address the other grounds Botrie asserted for

excluding the evidence of damages. See Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC,

386 S.W.3d 256, 264 (Tex. 2012) (stating courts must uphold evidentiary rulings “if there is any

legitimate basis for the ruling”). Botrie also objected to Dhuka’s testimony on the ground that BFM

failed to timely amend its disclosures to include damages for its breach-of-contract counterclaim.




                                                 12
               “A party who fails to make, amend, or supplement a discovery response in a timely

manner may not introduce in evidence the material or information that was not timely disclosed”

unless the trial court finds either good cause or the absence of unfair surprise or unfair prejudice.

Tex. R. Civ. P. 193.6(a). The burden is on the proponent of the evidence to establish an exception.

Id. R. 193.6(b). BFM did not amend its disclosures to add its damages until eleven days before trial

and four months after the end of the discovery period.6 The exclusion is automatic unless the

proponent of the evidence establishes an exception, which BFM makes no effort to do. See, e.g.,

In re First Transit Inc., 499 S.W.3d 584, 595 (Tex. App.—Houston [14th Dist.] 2016, orig.

proceeding [mand. denied]). The trial court did not abuse its discretion by excluding BFM’s

evidence of contract damages.7

               We overrule BFM’s eighth and ninth issues.


                                           JUDGMENT

               In its remaining issues, BFM challenges various aspects of the final judgment and the

trial court’s failure to grant its motion for judgment not withstanding the verdict.




       6
          Botrie elected to conduct discovery under the Level 2 deadlines and the trial court never
issued a scheduling order modifying them. See Tex. R. Civ. P. 190.3(b)(1)(B) (providing that the
discovery period begins when suit is filed and continues until the earlier of nine months after “the
due date of the first response to written discovery” or thirty days before trial).
       7
          In a single paragraph of its ninth issue, BFM challenges a separate ruling preventing it from
putting on evidence that the shopping center would flood during rains. BFM asserted the flooding
as one of Botrie’s alleged breaches of the Lease. We do not address this argument because without
evidence of damages BFM’s counterclaim for breach of contract would fail as a matter of law. See,
e.g., Scott v. Sebree, 986 S.W.2d 364, 372 (Tex. App.—Austin 1999, pet. denied) (observing that
damages are essential element of breach-of-contract claim).

                                                  13
Sufficiency of the Evidence

               BFM argues in its sixth, fourteenth, and fifteenth issues that legally insufficient

evidence supports the findings that it defaulted under article 23.1(a) and (b) of the Lease.


               Preservation of Error

               Before addressing the merits of these arguments we must determine if BFM preserved

its challenges to the jury’s findings. A complaint that legally insufficient evidence supports jury

findings must be preserved by (1) a motion for directed verdict; (2) a motion for judgment

notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion

to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial. T.O. Stanley Boot

Co., v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992).

               As previously discussed, the Lease provides that a default occurs when there is a

violation of the Lease that remains uncured a certain number of days after the tenant receives notice

of the violation. BFM argues in its fourteenth issue that the evidence is insufficient because the

record conclusively shows that the August letter did not comply with the Lease’s notice

requirement.8 BFM challenges the jury’s finding that BFM defaulted by putting up the five exterior

signs in its fifteenth issue. BFM raised both of these arguments for the first time in its motion for

judgment notwithstanding the verdict but failed to obtain a ruling. However, BFM moved for a

directed verdict at the close of evidence on the ground “that notice of default was not properly

given.” We construe BFM’s fourteenth issue as renewing that complaint but conclude that BFM


       8
          BFM makes the same argument regarding the trial court’s findings in its sixth issue. A
legal-sufficiency challenge following a bench trial may be made for the first time on appeal. See
Tex. R. App. P. 33.1(d).

                                                 14
failed to preserve the sufficiency challenge in its fifteenth issue. See id.; see also Adams v. Starside

Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (“Rules of error preservation should not

be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.”).


                Merits

                In a legal-sufficiency challenge we review the evidence in the light most favorable

to the verdict, “crediting favorable evidence if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005).   A legal-sufficiency challenge will be sustained when, relevant here, the evidence

conclusively establishes the opposite of a vital fact. Southwest Energy Prod., 491 S.W.3d at 713.

                BFM first argues that the notices of default were ineffective because they did not

comply with article 26 of the Lease. Article 26.1 provides:


                Wherever any notice is required or permitted under this Lease, such
                notice shall be in writing. Any notice or document required or
                permitted to be delivered under this Lease shall be deemed to be
                delivered when it is actually received by the designated addressee or,
                if earlier and regardless of whether actually received or not, when it
                is either (i) deposited in the United States mail, postage prepaid,
                certified mail, return receipt requested, or (ii) delivered to the custody
                of a reputable messenger service or overnight courier service,
                addressed to the applicable party to whom it is being delivered . . . .


BFM interprets this language to mean that notice must be sent addressed to BFM via certified mail

or a courier service. BFM asserts that neither the August 10, 2015 letter (regarding Barley Bean) or

the January 13, 2016 letter (regarding late rent) complied because the August letter was addressed

to “KLM Enterprises” rather than BFM, and the January letter was delivered by email.


                                                   15
               We construe the unambiguous language of a lease “according its plain, grammatical

meaning unless doing so would clearly defeat the parties’ intentions.” Anadarko Petrol. Corp.

v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002). The plain language of the Lease provides three

circumstances where a notice will be deemed delivered: (1) “when it is actually received by the

designated addressee,” (2) when it is sent by certified mail, or (3) when it is delivered to a reliable

messenger or courier service. It is undisputed that both letters were received by the designated

addressee—BFM—at the designated address. Even if article 26.1 could be read to prohibit deliveries

of notices by email, the trial court admitted a copy of the January 13, 2016 letter accompanied by a

receipt reflecting that it was sent to BFM by certified mail. The evidence does not conclusively

establish that the notices were ineffective.


               Prior Material Breach

               BFM next contends that the evidence establishes that Botrie breached the Lease

before BFM’s untimely payment, thus excusing any of its breaches. “It is a fundamental principle

of contract law that when one party to a contract commits a material breach of that contract, the other

party is discharged or excused from further performance.” Mustang Pipeline Co., v. Driver Pipeline

Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam). By contrast, a non-material breach does not

excuse further performance but gives rise to a claim for damages for breach of contract.

Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432, 436 (Tex. 2017). The

Lease explicitly addresses the effect of a breach by Botrie on BFM’s obligation to pay rent: “the

obligations of [Botrie] under this Lease are independent of [BFM’s] obligations except as may be

otherwise expressly provided in this Lease.” In the next sentence, BFM “waives all rights which it


                                                  16
might otherwise have to withhold” rental payments. The unambiguous language of the Lease

provides that Botrie’s failure to perform any of her obligations does not excuse BFM’s failure to

timely pay rent. See, e.g., In re Davenport, 522 S.W.3d 452, 457 (Tex. 2017) (orig. proceeding)

(“An unambiguous document will be enforced as written.”). Applying this provision, we conclude

that the defense of prior material breach is unavailable to BFM.             See Ramaker v. Abbe,

No. 03-10-00713-CV, 2013 WL 3791491, at *3 (Tex. App.—Austin July 18, 2013, no pet.) (mem.

op.) (“The covenant breached must be part of mutually dependent promises in order to excuse further

performance by the nonbreaching party.” (citing Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707,

708 (Tex. 1982))). The trial court’s findings that BFM defaulted under article 23.1(a) of the Lease

are therefore supported by legally sufficient evidence.

               We overrule BFM’s sixth, fourteenth, and fifteenth issues.


Joinder of Prasla

               BFM argues in its thirteenth issue that the trial court erred in failing to grant its

motion to dismiss for want of jurisdiction and its verified motion to abate. The UDJA provides that

“[w]hen declaratory relief is sought, all persons who have or claim any interest that would be

affected by the declaration must be made parties.” Tex. Civ. Prac. & Rem. Code § 37.006(a). If a

party is absent, the question “is not whether jurisdiction is lacking . . . but whether the trial court

should have refused to enter a judgment.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex.

2004). This “prudential question” is governed by Texas Rule of Civil Procedure 39. Crawford

v. XTO Energy, Inc., 509 S.W.3d 906, 911 n.3 (Tex. 2017). A complaint that Rule 39 requires

joinder must be raised in the trial court or it is waived. See Brooks, 141 S.W.3d at 163-64; Simpson


                                                  17
v. Afton Oaks Civic Club, Inc., 145 S.W.3d 169, 170 (Tex. 2004) (per curiam). BFM first raised this

issue in a motion to dismiss for want of jurisdiction and a motion to abate seventy-one days after the

trial court signed the final judgment. We conclude that BFM has waived this complaint and overrule

its thirteenth issue. Cf. In re J.W.M., 153 S.W.3d 541, 546 (Tex. App.—Amarillo 2004, pet. denied)

(holding that appellant waived joinder issue by not raising it until motion for new trial).


Conformity of the Judgment to the Verdict

               BFM argues in its first issue that the judgment does not conform to the jury’s answers

because it “gives no legal effect to the jury’s findings that [BFM] substantially relied to its

detriment” on Botrie’s promises. See Tex. R. Civ. P. 301 (providing that the court’s judgment must

“conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so

framed as to give the party all the relief to which he may be entitled either in law or equity”).

               The doctrine of promissory estoppel “prevents a promisor who has induced

substantial action or forebearance by another from denying that promise if ‘injustice can be avoided

only by enforcement.’” Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 926 (Tex.

App.—Austin 2008, no pet.) (quoting In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex. 2005)

(orig. proceeding)). Promissory estoppel is normally a defensive theory but “may be the basis of an

affirmative claim.” Id.; see Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 655

(Tex. App.—Dallas 2015, no pet.). BFM characterized its promissory-estoppel theory as a

“counterclaim” but employed it defensively at trial. The jury excused three of BFM’s breaches.

Moreover, BFM did not plead for or seek any damages for its reliance. See Bechtel Corp.,

271 S.W.3d at 926 (stating that promissory-estoppel claim may be used affirmatively “to recover no


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more than reliance damages measured by the detriment sustained” (quoting Wheeler v. White,

398 S.W.2d 93, 97 (Tex. 1965)). We overrule BFM’s first issue.


Suit for Accounting

                BFM argues in its seventh issue that the trial court reversibly erred by failing to order

an accounting. Botrie replies that BFM made no showing that an accounting was appropriate.

                “‘A suit for accounting is generally founded in equity,’ and whether to grant

‘an accounting is within the discretion of the trial court.’” Williams v. Wells Fargo Bank, N.A.,

560 Fed. App’x 233, 243 (5th Cir. 2014) (quoting Southwestern Livestock & Trucking Co. v. Dooley,

884 S.W.2d 805, 809 (Tex. App.—San Antonio 1994, writ denied)). A party seeking an equitable

accounting has the burden to demonstrate that the facts and accounts presented are so complex that

it cannot obtain the necessary information through normal discovery procedures. Grant v. Pivot

Tech. Sols., Ltd., ___ S.W.3d ___, ___, No. 03-17-00289-CV, 2018 WL 3677634, at *12 (Tex.

App.—Austin Aug. 3, 2018, no pet. h.); T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners

Ass’n, 79 S.W.3d 712, 717-18 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). BFM alleged

that Botrie deliberately overcharged BFM for electricity and maintenance beginning in 2011 but

made no showing that BFM could not obtain the information that it needed through ordinary

discovery procedures. We conclude the trial court did not abuse its discretion by not ordering an

accounting. See Williams, 560 Fed. App’x at 243 (“The Williamses have alleged no facts suggesting

the information they seek is complex such that the district court abused its discretion in denying their

request for accounting.”). We overrule BFM’s seventh issue.




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Attorney’s Fees

               BFM challenges the award of attorney’s fees in its second through fifth issues. The

relevant portions of the final judgment provide:


               2. [Botrie] is entitled to recover $131,146.93 in reasonable attorney's
               fees under Lease section 23.7, as that is the amount of reasonable
               attorney’s fees [Botrie] incurred to enforce and defend her rights and
               remedies under the Lease.

               3. To the extent necessary, the Court also found that Botrie is entitled
               to recover the same amount in attorney’s fees under Texas Civil
               Practice and Remedies Code section 37.009.


               In its second issue, BFM argues that the trial court’s fee award is not supported by

the pleadings. See Tex. R. Civ. P. 301. Botrie expressly pleaded for a fee award under article 23.7

of the Lease or section 37.009 of the UDJA, and the judgment awards her fees under the Lease and

alternatively under the UDJA. BFM points out that Botrie’s counsel cited to cases addressing awards

under a different fee provision during the hearing but does not explain the significance of that fact.

We conclude that the judgment conforms to the pleadings and overrule BFM’s second issue.

               BFM argues in its third and fourth issues that the fee award must be reversed because

Botrie failed to segregate her fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311

(Tex. 2006) (holding that prevailing party must “segregate fees between claims for which they are

recoverable and claims for which they are not”). When the issue of attorney’s fees is tried to the

bench, as it was here, “if no one objects to the fact that the attorney’s fees are not segregated as to

specific claims, then the objection is waived.” Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.

1997). BFM made this argument in its motion for new trial but “[r]aising the segregation issue for


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the first time in a motion for new trial does not preserve error.”                 Lawson v. Keene,

No. 03-13-00498-CV, 2016 WL 767772, at *5 (Tex. App.—Austin Feb. 23, 2016, pet. denied)

(mem. op.) (citing Horvath v. Hagey, No. 03-09-00056-CV, 2011 WL 1744969, at *6 (Tex.

App.—Austin May 6, 2011, no pet.) (mem. op.)). We overrule BFM’s third and fourth issues.

                BFM argues in its fifth issue that the trial court abused its discretion by failing to

award BFM its attorney’s fees and costs. “In any proceeding” under the UDJA, “the court may

award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac.

& Rem. Code § 37.009. We review a fee award for an abuse of discretion. Bocquet v. Herring,

972 S.W.2d 19, 21 (Tex. 1998). The trial court’s discretion to award fees under the UDJA is

“subject to the requirements that any fees awarded be reasonable and necessary, which are matters

of fact, and to the additional requirements that fees be equitable and just, which are matters of law.”

Id. The determination of whether an award of fees is equitable and just is not susceptible to direct

proof but rather “is a matter of fairness in light of all the circumstances.” Anglo-Dutch Petrol. Int’l,

Inc. v. Greenberg Peden, P.C., 522 S.W.3d 471, 494 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied) (citing Ridge Oil Co., v. Guinn Invs., Inc., 148 S.W.3d 143, 162-63 (Tex. 2004)). The award

is not dependent on whether a party substantially prevailed, and the trial court has the discretion to

decline to award fees entirely. See Barshop v. Medina Cty. Underground Water Conservation Dist.,

925 S.W.2d 618, 637 (Tex. 1996); Anglo-Dutch Petrol., 522 S.W.3d at 494.

                BFM argues that the trial court’s refusal to award fees is not equitable and just since

the trial court made declarations that some of BFM’s defaults were excused. However, those

declarations in BFM’s favor did not afford it any relief. The Lease provides that a single “event of



                                                  21
default” entitles Botrie to possession of the premises and a variety of other remedies. The trial court

did not abuse its discretion by refusing to award fees and costs to BFM when it did not prevail. See

Ochoa v. Craig, 262 S.W.3d 29, 33 (Tex. App.—Dallas 2008, pet. denied) (finding no abuse of

discretion in refusal to award fees to nonprevailing party); Brazoria Cty. v. Texas Comm’n on Envtl.

Quality, 128 S.W.3d 728, 744 (Tex. App.—Austin 2004, no pet.) (same). We overrule BFM’s

fifth issue.


                                          CONCLUSION

               Having overruled all of BFM’s issues, we affirm the trial court’s judgment.



                                               ________________________________________
                                               Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: October 25, 2018




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