      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00374-CV



                                  Donovan Thomas, Appellant

                                                 v.

                            C & M Jones Investments, LP, Appellee


           FROM THE COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
            NO. 5729, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Donovan Thomas, pro se, appeals a trial-court judgment that awarded damages and

attorney’s fees to C & M Jones Investments, LP, in a suit alleging breach of two commercial leases.1

The substance of Thomas’s contentions is that (1) the evidence conclusively or by the great weight

and preponderance establishes that C & M waived or is estopped from asserting any claim of breach

against Thomas; and (2) the amount of damages awarded—$9,742.04—is not supported by legally

or factually sufficient evidence.2 We will affirm the judgment.

       1
        The judgment and notice of appeal referred to the plaintiff and appellee as C & M Jones
Investments, LLC, and for this reason the appeal was initially docketed with that name. The
record—including the leases at issue and trial testimony—demonstrates with certainty that this party
is known as C & M Jones Investments, LP, and that the discrepancy is merely an innocuous
misnomer. We have corrected the style of the appeal accordingly.
       2
         The amount of attorney’s fees awarded was $2,100. Thomas does not challenge this award
apart from his defenses to the liability on which the award is predicated.
                The claims were tried to the bench.3 The evidence reflected that the two leases in

question were each for the use of a suite, designated respectively as Unit 3 and Unit 4, in a Lockhart

commercial property known as Pecan Plaza. The leases were executed in 2010 by Pecan Plaza’s

then-owner, appellee C & M, acting through its principal Clifton M. Jones, and Thomas as tenant,

in contemplation that Thomas, a chiropractor, would operate his practice there. The evidence was

somewhat conflicting as to some of the lease terms and the extent to which the parties subsequently

agreed to modify the original written instruments, but generally it can be said that each lease required

Thomas to pay C & M rent around the first of each month. The rent amounts were derived from a

base rent that was adjusted upward to recoup certain fees and expenses paid by C & M, such as

utilities and, in the case of Unit 3, certain costs of improvements that C & M had funded.4 Each

lease also authorized C & M to assess late fees in the amount of 10% of any delinquent or unpaid

balance each month. Exclusive of late fees, the monthly rentals C & M charged to Thomas ranged

from approximately $1,100-1,200 for Unit 3 and $800 for Unit 4.



        While we have attempted to construe Thomas’s arguments in terms of the grounds for relief
their substance fairly invokes, we are ultimately bound to apply the same substantive and procedural
standards to him as we do represented parties. See Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184–85 (Tex. 1978). Our navigation of Thomas’s arguments is unaided by C & M’s perspective,
as it opted not to file an appellee’s brief.
       3
         The suit originated in small-claims court but was appealed to the trial court for de novo
proceedings. Although pro se on appeal, Thomas was represented by counsel below.
       4
          The lease for Unit 3 provided that Thomas would make improvements to the unit that had
been estimated to cost $6,000, that C & M would fund the improvements up to that amount, and that
any deviation between the improvements’ actual costs and the estimate would be recouped or rebated
(as applicable) through prorated adjustments to each month’s rent of $30 for each $1,000 in cost
difference. Under color of this provision, C & M adjusted each month’s rent for Unit 3 upward by
approximately $130.

                                                   2
                Although there is some dispute regarding the precise duration of each lease, the

parties concur that Thomas occupied both units and paid rents to C & M beginning in 2010 and

continuing into 2012. But as early as May 2010, C & M complained of delayed or partial payments

from Thomas and assessed late fees, and this would recur with some frequency in the ensuing years.

By December 2011, C & M was sending Thomas notices of default and demanding payment of

amounts alleged to be past due. C & M would do so again in January and March of 2012, with the

amount of the claimed arrearage increasing each time.

                Amid these difficulties, C & M, through Jones, negotiated and ultimately completed

the sale of Pecan Plaza to a third party effective in June 2012. In connection with the transaction,

and apparently at the buyer’s insistence, Jones undertook to obtain from Thomas an estoppel

agreement or certificate concerning each lease.5 Jones testified that while he was an experienced

real-estate investor, he had never previously been called upon to provide an “estoppel” in connection

with a transaction. He attempted to comply by using an estoppel agreement or certificate form that

he found on the Internet.

                Utilizing this form, in March or April 2012, Jones prepared a draft “estoppel”

concerning each lease for Thomas to sign. Each document recited that in exchange for consideration,




        5
           Generally speaking, an “estoppel certificate” or “tenant estoppel certificate” refers to a
verification regarding the existence and validity of lease or contract obligations and the
parties’ compliance with them. See, e.g., 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255
(Tex. App.—Dallas 2002, pet. denied) (“A tenant estoppel certificate verifies the current tenant has
a good lease and that neither it nor the seller is in default.”); see also Black’s Law Dictionary (9th ed.
2009) (defining “estoppel certificate” as a “signed statement by a party (such as a tenant or a
mortgagee) certifying for another’s benefit that certain facts are correct, such as that a lease exists,
that there are no defaults, and that rent is paid to a certain date”).

                                                    3
the signatory (identified throughout as “Tenant”) agreed that the respective lease was valid, that the

Tenant was in possession, and that a list of material lease terms within the document was accurate.

This list portion of the document consisted of a series of fill-in-the-blank questions in which the user

was to indicate such terms as “Term of Lease,” “Date of Lease,” “Monthly Rent,” and “Security

Deposit,” and Jones completed these in handwriting. Each form also contained terms whereby the

Tenant would agree that “Landlord” (i.e., C & M) was not in default under the lease and did not have

any outstanding obligations owing to Tenant. Conversely, the form included the following terms

regarding obligations owing from Tenant to Landlord:


       4.      All rent, charges, or other payments due the Landlord under the Lease have
               been paid as of March 31, 2012, and there have been no repayments or rent
               or other obligations.

       5.      The Tenant under the Lease is not in default under any terms of the Lease.


Each form concluded with the agreement that “[t]his certification shall be binding upon, and shall

enure to the benefit of the Landlord and the Tenant, the respective successors and assigns of the

Landlord and the Tenant and all parties claiming through or under such persons or any successor or

assign.” Each form concluded with a blank signature space for Thomas as “TENANT.”

               Jones left the two forms at Thomas’s office with a note urging that he complete

them “ASAP” and return them in a self-addressed envelope Jones had provided. Thomas responded

by returning both forms unsigned (although each blank signature block had curiously been dated

May 11, 2012 and notarized) and with handwritten changes reflecting disagreement with several

of the lease terms Jones had handwritten in the blanks. These included the “Monthly Rent” for



                                                   4
Unit 3 (while Jones had indicated the amount of $1,281, Thomas claimed that he owed only $1,100),

the date and term of the Unit 4 lease (while Jones had indicated a three-year term starting on April 1,

2010, Thomas asserted that the lease had a renewable one-year term that began on July 1, 2010), and

“Security Deposit” (while Jones had claimed that no security deposit had been made under either

lease, Thomas contended that he had paid $950 under each). Accompanying the returned forms was

a cover letter in which Thomas elaborated on his reasoning in making the changes and took issue

with other rentals and fees that Jones had elsewhere claimed to be owing.

                The disputes escalated further thereafter. Subsequent correspondence in evidence

included a June 1, 2012 letter from Jones in which he challenged Thomas’s assertions regarding the

lease term, monthly rentals, and security deposits. Jones also complained that Thomas had paid

his April rent for both units late and had failed to pay the full amounts owing for either unit in

both April and May. Eventually, on July 20, Jones sent Thomas a “Written Notice and Statement

of Claim” demanding payment of $8,505.33 within ten days and threatening suit if not complied

with. The litigation soon followed.

                In response to C & M’s claims that he had breached the leases, Thomas had pled the

affirmative defenses of waiver and estoppel. To establish that C & M had waived its rights under

the leases, Thomas had the burden of proving (1) “an existing right, benefit, or advantage held by a

party” (here, C & M); (2) “the party’s actual or constructive knowledge of its existence”; and (3) “the

party’s actual intent to relinquish,” or intentional conduct inconsistent with, the right.6 To establish


       6
          See Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex. 2008); see also Tenneco Inc.
v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (noting that waiver is an affirmative
defense).

                                                   5
the affirmative defense of equitable estoppel, on the other hand, Thomas had the burden of proving:

“(1) a false representation or concealment of material facts; (2) made with knowledge, actual or

constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without

knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the

representations.”7 Because the trial court did not make findings of fact and conclusions of law

elaborating on the basis for its final judgment,8 we imply that it failed to find that Thomas had met

his burden as to any element of either defense.9

               As the cornerstone of both defenses at trial, Thomas relied upon the portion of

the unsigned “estoppels” stating that rents had been paid and that the tenant was not in default. In

addition to urging that this language reflected or was reasonably understood to be C & M’s

relinquishment of its claims, Thomas emphasized testimony that Jones had ultimately provided the

“estoppels,” in the form that Thomas had returned them, to the third-party buyer. Thomas attempts

to bring these same basic contentions forward on appeal, asserting in substance that the “estoppel”

language refutes the existence of any evidentiary support for the trial court’s failure to find the

elements of waiver or estoppel. As the party having the burden of proof on the defenses, Thomas

can prevail on appeal only if he can demonstrate that the evidence conclusively establishes (i.e.,


       7
         Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16
(Tex. 1998) (internal citation omitted).
       8
         While Thomas did request findings of fact and conclusions of law, he did so untimely and
has otherwise not preserved any claim of entitlement to those findings and conclusions.
       9
          See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (where no findings of fact
or conclusions of law were requested or filed, “[i]t is therefore implied that the trial court made all
the findings necessary to support its judgment”).


                                                   6
that no reasonable person could conclude otherwise) each element of one or both defenses, in which

case he would be entitled to reversal and rendition of a take-nothing judgment in his favor.10

Alternatively, Thomas must demonstrate that the trial court’s failure to find the elements is so

contrary to the great weight and preponderance of the evidence as to be manifestly unjust, in which

case he would be entitled to a reversal and remand for a new trial.11 Under both standards, we defer

to the fact-finder’s determinations of the credibility of the witnesses, the weight to be given the

testimony, and the resolution of evidentiary conflicts.12

                Taking full account of the “estoppels,” the evidence falls far short of demonstrating

conclusively or by the great weight and preponderance each element of Thomas’s defenses. Among

other considerations, any notion that the “estoppels” represented C & M’s intentional relinquishment

of its claims to allegedly unpaid rentals and fees is countered by proof of the circumstances under

which the documents had been prepared, evidence that the parties’ conflict regarding allegedly

unpaid rentals and fees had raged both before and after Jones prepared the “estoppels,” and further

testimony by Jones that he had included the language in the expectation or hope (ultimately

unrealized) that Thomas would become current by the time he signed the documents. Similarly,

regarding Thomas’s estoppel defense, proof that Thomas and Jones continued to dispute the amount



       10
            See, e.g., Allstate Ins. Co. v. Hegar, 484 S.W.3d 611, 615 (Tex. App.—Austin 2016,
pet. filed) (citing City of Keller v. Wilson, 168 S.W.3d 802, 815–17 (Tex. 2005)). “Evidence is
conclusive only if reasonable people could not differ in their conclusions, a matter that depends on
the facts of each case.” City of Keller, 168 S.W.3d at 816 (footnote omitted).
       11
        See, e.g., Allstate Ins. Co., 484 S.W.3d at 615–16 & n.9 (citing Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001)).
       12
            See City of Keller, 168 S.W.3d at 819–22.

                                                  7
of rentals owed tends to negate both the absence of knowledge by Thomas of the true facts and any

detrimental reliance on his part. While Thomas testified that he had believed he was “being told

officially that [he] didn’t owe anymore money under the lease[s],” the trial court was within its

discretion—especially in light of the evidence here—in implicitly ascribing the claim little credibility

or weight.13 We accordingly reject Thomas’s challenge to the evidence supporting the trial court’s

failure to find the elements of waiver or estoppel.14

                 This leaves Thomas’s complaint about the amount of damages awarded. The

substantive gist of his complaint is that the trial court’s calculation of $9,742.04 in damages rests

upon two predicates that are each lacking support by legally or factually sufficient evidence. First,

Thomas insists that the award erroneously presumes that he vacated Unit 3 prior to Pecan Park’s

        13
             See id.
       14
          In his pro se appellate brief, Thomas frequently couches his arguments in terms of “quasi-
estoppel.” Quasi-estoppel, strictly speaking, is an equitable doctrine that “precludes a party from
accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid
corresponding obligations or effects.” See Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 548
(Tex. App.—Austin 1999, pet. denied). Phrased another way, it precludes a party from asserting,
to another’s detriment, a right inconsistent with a position he has previously taken. Ray v. T.D.,
No. 03-06-00242-CV, 2008 WL 341490, at *8 (Tex. App.—Austin Feb. 7, 2008, no pet.)
(mem. op.). The doctrine applies when it would be unconscionable to allow a person to maintain
a position inconsistent with one in which he accepted a benefit. Id.; Stable Energy, 999 S.W.2d
at 548. Although the substance of Thomas’s arguments would appear primarily to implicate the
waiver or equitable estoppel defenses he pleaded below, he also seems to contend that C & M should
be estopped from claiming rents are owed because it provided those statements to the third-party
buyer and succeeded in closing the transaction. To the extent Thomas seeks to invoke quasi-estoppel
as a defense distinct from equitable estoppel and has preserved that contention, the evidence
abundantly supports the trial court’s failure to find that it is unconscionable to permit C & M to
continue seeking to collect allegedly unpaid rents under the circumstances here. Regardless, the
defense would fail as a matter of law because “quasi-estoppel requires mutuality of parties;
the doctrine may not be asserted by or against a ‘stranger’ to the transaction that gave rise to
the estoppel.” Deutsche Bank Nat’l Tr. Co. v. Stockdick Land Co., 367 S.W.3d 308, 315 n.13
(Tex. App.—Houston [14th Dist.] 2012, pet. denied).

                                                   8
sale when in fact he had continued to operate his chiropractic practice there through time of trial.

However, Thomas does not point to anything in the trial record suggesting that the damages award

was based upon or had any relationship to any perception that he had vacated Unit 3. His sole

support for that assertion, rather, is an allegation contained in C & M’s live petition that Thomas

“vacated [Unit 3] and failed to pay the balance on the lease agreement when the property was sold

on or about June 22, 2012.” C & M ultimately did not attempt to prove that fact at trial, nor would

such a fact appear to be material to its damages theories. Thomas fails to demonstrate why or how

this pleading allegation, in itself, translated to some sort of error in the trial court’s damages

calculation.

               Second, Thomas maintains that the damages award improperly compensates C & M

for rents that would accrue on Unit 4 past C & M’s sale of the building in June 2012 and into 2013.

His reasoning is as follows:


       (1)     The damages award corresponds to a calculation that Jones presented at trial
               in which Jones determined that (a) Thomas had owed C & M a total of
               $55,293.24 under the leases; (b) Thomas had paid C & M a total of
               $45,551.20; (c) yielding a shortage in the amount of $9,742.04.

       (2)     This testimony by Jones concerning the total amount owed was in response
               to a question inquiring, “Did you calculate a number or total that was owed
               on the property for the whole period of time with late fees and everything?”

       (3)     According to Thomas, Jones’s calculation of the amounts “owed on the
               property for the whole period of time” referred to all of the rents that would
               accrue through the end of the lease term.

       (4)     Because Jones had claimed that the Unit 4 lease had a three-year term that
               began in April 2010, Thomas infers that Jones’s calculation of the total
               amounts owed “for the whole period of time” must have included rents that
               would accrue through March 2013.

                                                 9
       (5)     The calculation thereby compensated C & M for rentals accruing after the
               date it sold Pecan Plaza. Thomas further emphasizes that he had sent C & M
               notice of his intent to vacate Unit 4 at the end of June 2012, consistent with
               his view that the Unit 4 lease provided for renewable one-year terms that
               commenced in July 2010.


Thomas’s argument is quickly disposed of by observing that C & M never purported to seek recovery

of rents or fees that had accrued past the date it sold Pecan Plaza. Instead, C & M’s theories at

trial were directed entirely at establishing Thomas’s liability for rents and fees occurring prior to

that time. Counsel’s reference to “the whole period of time” must be read in that context to refer to

the entirety of the lease term preceding Pecan Park’s sale, and that was plainly the thrust of

Jones’s response and his evidence. Thomas has failed to demonstrate any error in the trial court’s

damages calculation.

               We affirm the trial court’s judgment.



                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: July 15, 2016




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