Reverse and Render; Opinion Filed February 1, 2013.




                                                                      In The
                                              Qluurt uf Appiats
                                      iiftI! 3itrict øf Jixa at Oatlaz
                                                           No. 05-11-00673-CV


                  GAUTAM C. DAFTARY AND SHWETA G. DAFTARY, Appellants

                                                                          V.

PRESTONWOOD MARKET SQUARE, LTD. AND NEW PEPPER SQUARE SIC, LTD.,
                         Appellees


                                    On Appeal from the County Court at Law No. 4
                                                Dallas County, Texas
                                        Trial Court Cause No. CC-11-01529-D


                                             MEMORANDUM OPINION
                                        Before Justices Moseley, Fillmore, and Myers
                                                 Opinion By Justice Moseley

           Gautham C. Daftary and Shweta G. Daftary (the Daftarys) appeal the trial court’s entry of

an adverse judgment in an action for forcible entry and detainer.
                                                        1 The trial court awarded possession

of the property, damages, and attorney’s fees to Prestonwood Market Square, Ltd. and Henry S.

Miller Brokerage, LLC.
                  2                         In five issues on appeal, the Daftarys argue the trial court lacked

jurisdiction to renderjudgment, the evidence was legally insufficient to support the damages award,


     The parties filed multiple lawsuits against one another, which the court consolidated into one action. The court then tried the forcible-detainer
     t
action after abating all other claims between the parties. After concluding the forcible-detainer trial and entering a Partial Judgment, the court granted
appellees’ motion to sever the forcible detainer from the other claims in the case. The severed action was assigned a separate cause number. This
appeal followed.


    Appellees are entities created by Henry S. Miller Company. We will refer to them collectively as “HSM.”
    2
the trial court erred by awarding attorney’s fees to HSM, the trial court abused its discretion by

severing the forcible-detainer action from the other claims in the case, and there is no final judgment

in the case.

        The background and facts of the case are well-known to the parties; thus, we do not recite

them here in detail. Because all dispositive issues are settled in law, we issue this memorandum

opinion. TEx. R. App. P. 47.2(a), 47.4. Because we lack jurisdiction over the Daftarys’ complaints

about the trial court’s order severing the forcible-detainer partial judgment, we dismiss those

complaints on appeal. Because HSM’s cause of action for possession of the premises was mooted

before trial, we vacate the trial court’s judgment awarding possession of the premises to HSM and

dismiss that claim as moot. Additionally, because there is no evidence of HSM’s damages, we

reverse the trial court’s judgment awarding HSM damages and attorney’s fees, and render a take-

nothing judgment on HSM’s requests for damages and attorney’s fees.

        The Daftarys leased commercial real estate from HSM for $12.00 per square foot. The lease

expired on June 30, 2008. The Daftarys sought to exercise a three-year renewal option. Although

the Daftarys and HSM did not sign a new lease or an extension, the Daftarys continued paying rent

pursuant to the terms of the expired lease from July 2008 until September 2009.

        In October 2009, HSM informed the Daftarys that if they continued to occupy the space, they

could either execute a new, long-term lease or pay holdover rent. The Daftarys believed they had

executed the three-year option on the prior lease and a new, long-term lease was unnecessary. The

following month, HSM notified the Daftarys it was terminating their month-to-month tenancy and

that they must vacate the premises within 30 days, or no later than December 21, 2009. When the

Daftarys failed to vacate the premises, HSM filed a forcible-detainer action in the justice court. In

February 2010, the justice court held a hearing on HSM’s forcible-detainer action and awarded




                                                 —2—
possession of the premises to HSM. The Daftarys appealed the ruling to the County Court at Law;

the Daftarys continued to occupy the premises during the pendency of the appeal.

       The County Court at Law conducted a trial de novo on HSM’s forcible-detainer action on

January 25, 2011. On the day of trial, before the proceedings began, the Daftarys presented the trial

court with the keys to the premises and tendered possession. The Daftarys then argued the forcible

detainer case was moot because the case no longer presented an issue about which party was entitled

to possession. The trial court proceeded to conduct a bench trial; at the end of the trial, the court

concluded HSM was entitled to possession, rent that would have been due from December21, 2010,

until January 25, 2011, and attorney’s fees.       The signed judgment reflects the trial court’s

conclusions.

        In their first issue, the Daftarys argue the trial court lacked jurisdiction to consider the

forcible-detainer action because the case became moot when they tendered possession of the

premises on the morning of trial. Appellate courts are prohibited from deciding moot controversies.

See Sepulveda v. Medrano, 323 S.W.3d 620, 625 (Tex. App.—Dallas 2010, no pet.). Ajusticiable

controversy between the parties must exist at every stage of the legal proceedings, including the

appeal, or the case is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). If a case

becomes moot, the appellate court must vacate any judgment or order the trial court to dismiss the

case. City ofDallas v. Woodfield, 305 S.W.3d 412,416 (Tex. App.—Dallas 2010, no pet.). When,

as here, possession changes hands and there is no basis for a claim of right to possession, the issue

of possession becomes moot. See Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787

(Tex. 2006).

        However, the entire case only becomes moot if a controversy ceases to exist or the parties

lack a legally cognizable interest in the outcome. See Allstate Ins. Co. v. Haliman, 159 S.W.3d 640,




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642 (Tex. 2005). A dispute over attorney’s fees is a live controversy and may prevent an appeal

from being moot. See id. Likewise, a dispute regarding damages is a live controversy and may

prevent a case from becoming moot. See Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d

826, 830 (Tex. App.—Austin 2003, pet. denied).

       Before hearing the Daftarys’ appeal de novo from thejustice court, the trial court determined

it would consider the forcible-detainer case as well as “any remedy available under TRCP 752.”

Pursuant to rule 752, HSM could recover its “damages, if any, suffered for.   .   .   defending possession

of the premises during the pendency of the appeal.” TEx. R. CIV. P. 752. Damages include “loss of

rentals during the pendency of the appeal and reasonable attorney fees in the justice and county

courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property

Code have been met. Only the party prevailing in the county court shall be entitled to recover

damages against the adverse party.” TEX. R. CIV. P. 752.

       While the issue of possession became moot when the Daftarys vacated the property, the entire

case was not moot because HSM’s claims for damages and attorney’s fees continued to present live

controversies. Because live claims were presented to the trial court, it did not err by concluding the

case was not moot and it had jurisdiction. We overrule the Daftarys’ first issue.

        The Daftarys also argue the evidence was legally insufficient to support the damages

awarded. The proper measure of damages in a forcible-detainer appeal is the reasonable rental value

of the property during the pendency of the appeal. Hart v. Keller Props., 567 S .W.2d 888, 889 (Tex.

Civ. App.—Dallas 1978, no writ); Koelzer v. Pizzirani, 718 S.W.2d 420, 422 (Tex. App.—Fort

Worth 1986, no writ).

        The trial court’s judgment states HSM “offered evidence at trial proving their entitlement to

their damages in the form of the rent and other charges due under the Lease, from the date they were




                                                 -4-
entitled to possession of the premises, December 21, 2009 [sic] through the date of trial on January

25, 201 1.” The trial court concluded the proper amount of damages was $26,000.96.

           HSM presented no evidence at trial showing it was entitled to $26,000.96. Moreover, it did

not present any evidence showing the reasonable rental value of the property during the pendency

of the appeal. The only evidence relating to the rental value of the property was testimony that the

fair market rental value for the property was $12.00 per square foot or $12.50 per square foot in July

2008. However, no evidence showed whether the fair market rental value was the same from

December 2009 to January 2011 (the time period the appeal was pending) as it was in July 2008.

Because HSM only offered evidence about the fair market rental value as of July 2008 and failed to

offer any evidence showing the reasonable rental value during the pendency of the appeal, the trial

court erred by awarding damages pursuant to rule 752. We sustain the Daftarys’ second issue.

           In their third issue, the Daftarys argue the trial court erred by awarding attorney’s fees to

HSM. Rule 752 and Section 24.006 of the property code require, among other things, the party

prevail in the trial court before it can recover attorney’s fees. See TEx. R. CIV. P. 752; TEx. PROP.

CODE ANN.        § 24.006(b) (West 2000). Because the trial court lackedjurisdiction to consider the issue
of possession and the trial court erred by awarding damages to HSM, HSM was not a prevailing

party. Therefore, HSM did not satisfy the terms of section 24.006(b) or rule 752 and the trial court

erred by awarding attorney’s fees to HSM. We sustain the Daftarys’ third issue.




     During oral argument, the attorney for HSM argued $26,000.96 was the amount the Daftarys paid into the registry of the court during the time
     3
period they were holding over in lieu of paying rent directly to HSM. He asserted that the rent statements from this period of time were exhibits
admitted during the proceeding, and when added together, those rent statements would support the award of $26,000.96. However, the rent statements
in the record do not include any for the holdover period.


      We offer no opinion about whether the fair market rental rate from December 2010 until January 2011 was more than, less than, or equal to
$12.00 per square foot or $12.50 per square foot. We only state there was no evidence in this record regarding the fair market rental rate during that
period of time.




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          In their final two issues, the Daftarys argue the trial court abused its discretion by severing

the forcibledetainer partial judgment and, because there was no valid severance, there was no final

judgment in this case. However, the Daftarys failed to perfect an appeal of these issues. A party

seeking to alter a trial court’s order must file a notice of appeal. TEx. R. App. P. 25.1(c). The notice

of appeal filed by the Daftarys states it is their “intent to appeal the trial court’s Partial Judgment

signed on January 25, 2011.” The Notice of Appeal does not state their intent to appeal the trial

court’s Order on Plaintiff’s Motion to Sever dated March 1, 2010. Therefore, the Daftarys failed to

invoke our jurisdiction over issues related to the trial court’s severance order.

          Even if we were to assume the Daftarys’ fourth and fifth issues are properly before the Court,

we conclude the trial court did not err by granting HSM’s motion to sever. The Daftarys argue the

trial court abused its discretion because HSM originally agreed to consolidate all of the cases

between the parties and then, in its motion to sever, failed to show good cause for relief from its

procedural stipulation to consolidate all claims.
                                          5 To support their argument that HSM was required

to show good cause to withdraw the stipulation, the Daftarys cite Valero Eastex Pipeline Co. v.

Jarvis, 990 S.W.2d 852, 856 (Tex. App.—Tyler 1999, pet. denied). Although the Jarvis court did

state that a trial court should enter stipulations “unless good cause is shown for rejecting them,” the

Jarvis court also stated “[sjtipulations may be modified or withdrawn, however, at the discretion of

the trial court.” Assuming HSM did stipulate to the consolidation, Jarvis does not require it to show

good cause to withdraw.




      The only evidence in the record indicating HSM may have agreed to consolidate the claims is a docket entry from May ii, 2010, stating:
           MOTION CONSOLIDATE
                    -



           Party: PLAINTIFF PRESTONWOOD MARKET SQUARE LTD; DEFENDANT DAFTARY, GAUTAM C; DEFENDANT DAFTARY,
           SHWETA G
          AGREED EC057J015779129
                    -




For purposes of this opinion, we will assume HSM did agree to the consolidation.




                                                                   -6-
          Rule 41 provides that “[amy claim against a party may be severed and proceeded with

separately.” TEx. R. CIV. P. 41. Severance is appropriate if: (1) the controversy involves more than

one cause of action, (2) the severed claim is one that could be asserted independently in a separate

lawsuit, and (3) the severed actions are not so interwoven with the other claims that they involve the

same facts and issues. F.F.P. Operating Partners, L.P. v, Duenez, 237 S.W,3d 680,693 (Tex. 2007)

(quoting Guaranty Fed. v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990)).                  The

controlling reasons for a severance are to do justice, avoid prejudice, and further convenience.

Duenez, 237 S.W.3d at 693. The Daftarys do not argue the controversy does not involve more than

one cause of action, the severed claim could not have been asserted independently, or the forcible

detainer action is so interwoven with the other claims that they all involve the same facts and issues.

Likewise, the Daftarys do not assert severance would not be in the interest ofjustice or would create

prejudice or inconvenience. After reviewing the record, we conclude the trial court did not abuse

its discretion by granting HSM’ s motion to sever. See id. We overrule the Daftarys’ fourth and fifth

issues.

          We vacate the trial court’s judgment awarding possession of the premises to HSM and

dismiss HSM’s cause of action for possession of the premises. Additionally, we reverse the trial

court’s judgment awarding damages and attorney’s fees to HSM, and render a take-nothing judgment

on HSM’s requests for damages and attorney’s fees. We lack jurisdiction over the Daftarys’

complaints about the trial court’s order severing the forcible-detainer partial judgment; thus we

dismiss those complaints. We express no opinion on the merits of the parties’ other claims against




                                                  —7—
each other; our opinion is limited to the issues relevant to a




1 10673RP05




                                                 —8—
                                Qttnirt nf Appeat
                       JiiftI! Oiatrirt nf ixai at Oattaa
                                      JUDGMENT
GAUTAM C. DAFTARY AND SHWETA                       Appeal from the County Court at Law No. 4
G. DAFTARY, Appellants                             of Dallas County, Texas. (Tr.Ct.No. Cause
                                                   No. CC-i 1-01529-D).
No. 05-i i-00673-CV          V.                    Opinion delivered by Justice Moseley,
                                                   Justices Fillmore and Myers participating.
PRESTONWOOD MARKET SQUARE,
LTD. AND NEW PEPPER SQUARE S/C,
LTD., Appellees

       Based on the Court’s opinion of this date, the trial court’s January 25, 2011 Partial
Judgment awarding possession of the premises located at 14902 Preston Road, Suite 401, Dallas,
Texas 75254 (Premises) to appellees Prestonwood Market Square, Ltd. and New Pepper Squares
S/C, Ltd. is VACATED and appellees’ claim for Possession of the Premises is DISMISSED.

        The trial court’s Partial Judgment that appellees “have and recover damages from
[appellants Gautam C. Daftary and Shweta G. Daftary], jointly and severally, the sum of
$26,000.96 in damages, attorneys’ fees in the amount of $82,250.20, postjudgment interest on the
total sum at the annual rate of five percent (5%) and all recoverable costs of court” is
REVERSED and judgment is RENDERED that appellees Prestonwood Market Square, Ltd.
and New Pepper Squares S/C, Ltd. take nothing against appellants Gautam C. Daftary and
Shweta G. Daftary on appellees’ requests for damages and attorney’s fees.

        It is ORDERED that appellants Gautam C. Daftary and Shweta G. Daftary recover their
costs of this appeal from appellees Prestonwood Market Square, Ltd. and New Pepper Squares
S/C, Ltd.



Judgment entered February 1, 2013.
