Diane Piwko v. Stacey Acevedo

AFFIRM in Part, REVERSE in Part, and REMAND, and Opinion Filed June
27, 2024.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00135-CV

DIANE PIWKO, Appellant
V.
STACEY ACEVEDO, Appellee

On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-05314-2019

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
In this landlord–tenant dispute, Stacy Acevedo (“Tenant”) obtained a

judgment against Diane Piwko (“Landlord”) on her breach of contract claim and

request for injunctive relief. On appeal, Landlord challenges the sufficiency of the

evidence to support various findings of the trial court and the amount of damages

awarded. While the evidence supports the trial court’s findings Landlord failed to

maintain the premises in good repair and violated Tenant’s right to quiet enjoyment

and that Tenant’s breaches of the Commercial Lease Agreement were not material,

the evidence is legally insufficient to support the amount of damages awarded.
However, there is some evidence to support an award of damages. Accordingly, we

reverse the trial court’s judgment awarding Tenant damages and attorney’s fees on

her breach of contract claim and remand the case for further proceedings consistent

with this opinion.1 Because all issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.4.

BACKGROUND

On January 2, 2019, Landlord and Tenant entered into a Commercial Lease

Agreement and a Consignment Agreement (collectively, Agreements) whereby

Tenant leased the ground floor of a three-story building located at 200 McKinney

Street in Farmersville, Texas, to operate a retail yarn store known as “Yarn and

You.” The leased premises also included a balcony/mezzanine that was attached to

and accessible by the ground floor. Landlord and her husband resided in a residence

on the third floor of the building. Landlord retained certain rights of access to the

leased premises. Under the Commercial Lease Agreement, Tenant was to make

monthly rent payments equal to 6% of the prior month’s total sales of product as

defined in the Consignment Agreement. The Consignment Agreement provided for

Tenant to sell merchandise in the store that belonged to Landlord. Landlord had

1
Although we reverse and remand for a new trial on liability and damages because of the lack of
sufficient evidence to support the damages awarded, we nevertheless address Landlord’s issues concerning
the legal sufficiency of the evidence to support the trial court’s liability findings because legal sufficiency
is a potential reverse and render issue. See Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex.
1993); GB Tubulars, Inc. v. Union Gas Operating Co., 527 S.W.3d 563, 567 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied). We need not address Landlord’s issues concerning the factual sufficiency of the
evidence to support the trial court’s liability findings. TEX. R. APP. P. 47.1.
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previously operated a retail yarn store in the leased space under the name “Fiber

Circle.” The terms of the Agreements were three years.

The relationship between Landlord and Tenant deteriorated over time, and, on

September 19, 2019, Tenant filed suit seeking to enjoin certain behavior of Landlord.

She later amended her petition to assert various causes of action, including breach

of contract. Landlord filed a counterclaim seeking to enjoin certain behavior of

Tenant and Tenant’s husband, and asserting, among other things, that Tenant

breached the Commercial Lease Agreement by failing to timely provide proof of

insurance and by installing security cameras without Landlord’s consent.

On October 3, 2019, the trial court signed a temporary restraining order

precluding Landlord from taking certain action with respect to Tenant. A temporary

injunction followed on October 9. The record does not contain a ruling on

Landlord’s request for any interim injunctive relief.

The case proceeded to a bench trial on October 31, 2022. The trial court took

judicial notice of its file and admitted into evidence 73 exhibits proffered by Tenant

and 27 exhibits proffered by Landlord. Tenant’s exhibits included a summary of

requested relief, the Agreements, photographs of the premises, text messages

between the parties, videos of the premises, a review of financials in support of

damages, and attorney’s fee invoices. Landlord’s exhibits included the Agreements,

building diagrams, a settlement agreement waiving the arbitration provision in the

Consignment Agreement, various communications from Landlord’s attorney to

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Tenant, documents from the forcible detainer action, proof of insurance,

photographs, newsletters prepared by Tenant, accounting for rent and consignment

payments, and attorney’s fee invoices. The witnesses at trial were Tenant, Tenant’s

husband, Landlord, Landlord’s husband, a woman who was acquainted with both

Landlord and Tenant, and the parties’ attorneys.

Tenant testified that every two weeks she made two payments to Landlord:

one for rent and one for consignment. The amount of rent was tied to sales. Tenant

testified that four to five months into the lease agreement her relationship with

Landlord started to deteriorate after she noticed and complained about a substance

dripping from the ceiling into the leased space and onto product she was trying to

sell. Tenant identified the substance as cat urine and attributed it to multiple cats

living in Landlord’s upstairs residence. In support of her claim the substance was

cat urine, Tenant indicated that the odor emanating from the substance was clearly a

cat odor. She further explained the substance and its odor impacted her ability to do

business. In addition to her testimony, Tenant offered photographic evidence

establishing a substance was dripping down from the ceiling above the leased space.

With respect to the breach of her right to quiet enjoyment of the leased premises,

Tenant testified that after the temporary injunction hearing, on one occasion, she

unlocked the leased space and found Landlord in the leased space with the lights off.

She explained Landlord yelled at her in an incoherent manner placing her in fear of

being harmed. Tenant also stated Landlord threatened her and her children and that

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Landlord had access to firearms that were being stored in Landlord’s personal

residence. Landlord’s behavior and access to firearms caused Tenant to install

security cameras on counters and shelves in the leased space. In addition, Tenant

explained that after the temporary injunction hearing, Landlord retrieved more than

60 filthy boxes or bags of what Tenant referred to as “reject yarn” from a storage

unit and left them scattered in the leased space making it impossible to walk through

the building. One of the boxes had an enormous dirt dauber nest on it. Tenant

introduced into evidence photos of the bags and boxes. Tenant also testified that

Landlord routinely cut portions of the power to the leased space, altered the

positioning of the security cameras, and made recordings of Tenant’s private

conversations without her knowledge or permission. With respect to damages,

Tenant introduced into evidence a document titled “Review of financials while under

contract with Diana.” Tenant explained she listed all of the rent and consignment

payments she made to Landlord by month, which ranged from $300 to $1,582.72,

and projected what those payments would have been had she stayed in the leased

space for the remaining 18 months of the 3-year lease. As the owner of the building

from which Tenant was then operating Yarn and You, she testified that the fair

market rental rate for the new space was $3,500 to $5,000 per month. She used the

$3,500 figure to calculate the difference between what she would have paid had she

remained in the leased space and what she would pay for rent in a comparable space

and came up with a figure of $50,642.16. Tenant also explained that she calculated

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loss of potential revenue from the sale of consignment goods by estimating the total

sales for the remainder of the lease term and subtracting the cost of consigned goods

and came up with a figure of $118,738.91. Tenant admitted that she did not give

Landlord a copy of the insurance policy she secured for several months despite

repeated requests.

Tenant’s husband testified that he installed the cameras in the leased space.

He indicated the cameras were not drilled into the building; they were just set on a

shelf. He stated that there were multiple instances where Landlord would change

the cameras’ location so that they were not recording anything visible.

Joanna Robertson testified she and Landlord have been very good friends

since January of 2007. Robertson became acquainted with Tenant from sit-and-knit

Sundays at the store. She testified she frequented the store and talked about changes

she saw therein after Landlord and Tenant entered into their agreements and about

how she stopped going to the store as a result of same. She testified she believed the

liquid dripping into the leased space was condensation from the air conditioning

units that were located overhead the leased space.

Landlord’s husband testified he cleaned up the drippings, but he did not

necessarily know they were cat urine. He acknowledged that he and his wife would

trip a breaker after hours so that Tenant’s internet would not be working, and the

cameras would not be recording. Landlord’s husband testified they did so because

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they were concerned about their privacy as one of the cameras faced a door leading

to their residence.

Landlord testified Tenant wrongfully attempted to push her out of the business

by not including the name Fiber Circle on promotional materials, by telling people

she was out of business, and by putting a sign on the door that said “Yarn and You”

only. She claimed Tenant’s husband intimidated and tormented her, and that she did

not harass, annoy or follow Tenant in violation of the temporary injunction. That

she simply came into the store to check on things and to visit with long time friends

and customers as she had a right to do so. She complained about Tenant burning

candles and using deodorizers to cover the claimed cat urine odor urging she was

sensitive to the scents and was concerned that the yarn would absorb the scents,

thereby damaging same.

At the conclusion of trial, the trial judge announced his decision. He stated

that he was going to find for Tenant on her breach of contract claim and the request

for permanent injunction. He indicated that under Section XIV of the lease Landlord

had a duty to keep the premises in good repair, so regardless of whether the substance

leaking from the ceiling was cat urine or condensation from the air conditioner, it

was Landlord’s duty not to let that occur and to correct it when it was occurring. He

further indicated that he was awarding damages in the amount of $50,642.16 and

reasonable and necessary attorney’s fees in the amount of $17,955. On November

15, 2022, the trial judge rendered judgment in accordance with his prior ruling.

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Landlord requested findings of fact and conclusions of law. After this Court

ordered the trial judge to make findings of fact and conclusions of law, the trial judge

made his findings and conclusions. The following are among the trial judge’s

findings of fact and conclusions of law. He believed Tenant’s testimony especially

as it related to the permanent injunction and damages was credible. The parties

entered into a valid and enforceable contract. That contract was the Commercial

Lease Agreement, which required Landlord to maintain the leased premises in good

repair at all times and included a provision that Tenant had the right to quiet

enjoyment of the premises. Tenant performed her obligations under the Commercial

Lease Agreement and was excused from further performance by Landlord’s material

breaches of the agreement. Landlord breached the Commercial Lease Agreement

by not maintaining the premises in good repair at all times and by violating the quiet

enjoyment provision of the agreement. Landlord’s breaches amounted to a

constructive eviction of Tenant and forced her to terminate her obligations under the

lease and to find a suitable alternative commercial space to continue operating her

business. Tenant was entitled to monetary judgment for damages related to

Landlord’s breaches of the agreement in the amount of $50,642.16. As the

prevailing party, Tenant was entitled to recover attorney’s fees under Chapter 38 of

the Texas Civil Practice & Remedies Code in the amount of $17,955. The trial judge

further found Tenant’s installation of video cameras on the premises and failure to

provide proof of insurance were not material breaches of the Commercial Lease

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Agreement and that Landlord used these alleged breaches as a subterfuge to file a

wrongful eviction proceeding.

DISCUSSION

I. Standard of Review

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

weight as a jury verdict. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—

Dallas 2016, no pet.). When the appellate record contains a reporter’s record, as it

does in this case, findings of fact are not conclusive and are binding only if supported

by the evidence. Id. We review a trial court’s findings of fact under the same legal

and factual sufficiency of the evidence standards used when determining if sufficient

evidence exists to support jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297

(Tex. 1994). Unchallenged findings of fact are binding on the parties and the

reviewing court. Employers Cas. Co. v. Henager, 852 S.W.2d 655, 658 (Tex.

App.—Dallas 1993, writ denied).

When a court makes findings of fact, but inadvertently omits an essential

element of a ground of recovery or defense, the presumption of validity will supply

the omitted element by implication. We presume the trial court’s omission is

inadvertent and we are authorized by Rule 299 to presume the trial court impliedly

made any findings, supported by the record, that are necessary to support its

judgment. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 255–56 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied).

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When an appellant challenges the legal sufficiency of an adverse finding on

which he did not have the burden of proof at trial, he must demonstrate there is no

evidence to support the adverse finding. Fulgham v. Fisher, 349 S.W.3d 153, 157

(Tex. App.—Dallas 2011, no pet). When reviewing the record, we determine

whether any evidence supports the challenged finding. Id. If more than a scintilla

of evidence exists to support the finding, the legal sufficiency challenge fails. Id.;

see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (more than

a scintilla of evidence exists when evidence “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions”).

When an appellant challenges the factual sufficiency of the evidence, we

consider all the evidence supporting and contradicting the finding. Sheetz, 503

S.W.3d at 502. In a bench trial, the trial court, as factfinder, is the sole judge of the

credibility of the witnesses. Fulgham, 349 S.W.3d at 157. The trial court may

choose to believe one witness over another, and we may not impose our own opinion

to the contrary. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003). We set aside the finding for factual insufficiency only if the finding is so

contrary to the evidence as to be clearly wrong and manifestly unjust. Fulgham, 349

S.W.3d at 157 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).

When a party challenges a trial court’s conclusions of law, we review the

challenged conclusions de novo. See BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 794 (Tex. 2002). The trial court’s conclusions of law are not subject to

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challenge for lack of factual sufficiency, but we may review the legal conclusions

drawn from the facts to determine their correctness. Id.; Dallas Cnty. v. Sweitzer,

881 S.W.2d 757, 763 (Tex. App.—Dallas 1994, writ denied); see also Walker v.

Anderson, 232 S.W.3d 899, 908 (Tex. App.—Dallas 2007, no pet.) (trial court’s

conclusions of law are independently evaluated to determine whether trial court

correctly drew legal conclusions from facts). We are not bound by the trial court’s

legal conclusions, but conclusions of law will be upheld on appeal if the judgment

can be sustained on any legal theory supported by the evidence. Sheetz, 503 S.W.3d

at 502.

II. Constructive Eviction – Wrongful Eviction

In her first issue, Landlord urges the trial court erred in finding Tenant had

been constructively evicted because no pleading supports the finding. In her fourth

issue, Landlord contends the evidence is legally insufficient to establish Tenant was

wrongfully evicted. While the trial court made factual findings Tenant had been

constructively evicted and was wrongfully evicted, it did not render judgment on this

basis. Rather, it rendered judgment in favor of Tenant on her breach of contract

claims. Therefore, without reference to the merits of Landlord’s first and fourth

issues, we overrule same as a determination thereon would have no practical effect

on the appeal. TEX. R. APP. P. 47.1.

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III. Breach of Contract

In her second issue, Landlord contends the evidence is legally insufficient to

support the trial court’s finding she breached the lease agreement by failing to keep

the building in good repair and by violating the quiet enjoyment provision of the

lease agreement.

To prove a claim for breach of contract, a plaintiff must establish: (1) the

existence of a valid contract; (2) performance or tendered performance by the

plaintiff; (3) breach of the contract by the defendant; and (4) the plaintiff’s damages

as a result of the breach. Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 802 (Tex.

App.—Dallas 2011, no pet.).

It is undisputed that the Commercial Lease Agreement was a valid contract to

which Landlord and Tenant were parties. It is further undisputed that Section XIV

of the Commercial Lease Agreement titled “MAINTENANCE” provided:

Landlord shall be responsible for maintaining the Premises in good
repair at all times during the term of this lease less consumables such
as light bulbs.

And Section XXI of the Commercial Lease Agreement titled “QUIET

ENJOYMENT” provided:

During the term of the Lease Agreement, the Landlord and Tenant have
the right and quiet enjoyment of the Premises. Tenant shall not create
excessive noise or other conditions to render Landlord’s occupation of
the second floor unenjoyable.

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With respect to the trial court’s finding Landlord breached the maintenance

provision of the Commercial Lease Agreement by failing to maintain the leased

premises in good repair, Tenant testified cat urine dripped from Landlord’s

residential unit above the store into the store and onto the yarn, damaging same, and

interfering with her ability to conduct business from the lease premises. Landlord

claimed the stains were from condensation dripping from the air conditioning units

into the lower floor of the building. Photographic evidence of stains from the

dripping substance were in evidence. Thus, the evidence established a substance

was dripping into the leased premises, damaging property and interfering with

Tenant’s business. This evidence constitutes more than a scintilla of evidence to

support the trial judge’s finding Landlord breached Section XIV of the Commercial

Lease Agreement. See Fulgham, 349 S.W.3d at 157.

With respect to the trial court’s finding Landlord breached the quiet

enjoyment provision of the Commercial Lease Agreement, Landlord contends,

because the elements of the implied covenant of quiet enjoyment are the same as the

elements of constructive eviction, Tenant had to prove (1) Landlord intended that

Tenant no longer use and enjoy the premises, (2) Landlord committed a material act

that substantially interferes with the tenant’s intended use and enjoyment of the

premises, (3) the material act must permanently deprive Tenant of the use and

enjoyment of the premises, and (4) the tenant must abandon the premises within a

reasonable time after the material act is committed. See Metroplex Glass Ctr., Inc.

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v. Vantage Props., Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 1983, writ ref’d

n.r.e.) (setting forth elements of constructive eviction). As an initial matter, we note

Tenant prevailed on her claim Landlord breached the quiet enjoyment provision of

the Commercial Lease Agreement, not on an implied covenant of quiet enjoyment.

The parties did not present any evidence the quiet enjoyment provision of the lease

was intended to replicate the implied covenant of quiet enjoyment with a contractual

provision. Thus, we conclude, to prevail on her claim Landlord breached Section

XXI of the Commercial Lease Agreement, Tenant had to prove Landlord interfered

with her right to quiet enjoyment of the premises and did not have to prove all of the

elements of constructive eviction, as required to prevail on a claim of violation of

the implied covenant of quiet enjoyment.

In that regard, Tenant provided testimony and photographic evidence

establishing Landlord had placed over 60 boxes and bags within the leased space,

blocking aisles and interfering with Tenant’s business operations. Tenant testified

about Landlord’s interference with security cameras and presented pictures and

videos of same and recordings Landlord made of Tenant’s private conversations. In

addition, Tenant testified Landlord would turn the power off to the leased space,

delaying Tenant’s opening of the store. Tenant also testified about Landlord’s

constant harassing conduct, including making disparaging remarks about Tenant

while customers were present. Videos showing Landlord’s conduct were admitted

into evidence. We conclude this evidence constitutes more than a scintilla of

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evidence and supports the trial judge’s finding Landlord breached Section XXI of

the Commercial Lease Agreement. See Fulgham, 349 S.W.3d at 157; see also

Fabrique, Inc. v. Corman, 796 S.W.2d 790, 792 (Tex. App.—Dallas 1990, writ

denied) (indicating harassing incidents may disturb the tenant’s peaceful possession

of premises).

Moreover, even if the contractual quiet enjoyment provision mimicked the

implied covenant of quiet enjoyment, the trial judge found Landlord constructively

evicted Tenant, and, the evidence identified above satisfies the first three elements

of constructive eviction as the evidence established Landlord’s intentional

harassment and interference was persistent and constantly deprived Tenant of the

use and enjoyment of the leased space. See, e.g., Steinberg v. Med. Equip. Rental

Servs., Inc., 505 S.W.2d 692, 697 (Tex. App.—Dallas 1974, no writ) (sufficient

evidence to support essential allegations concerning constructive eviction when it

appeared situation would not be corrected and appellee concluded he could not do

business under those circumstances). With respect to abandonment of the premises

within a reasonable time after the commission of the act, we note that Texas law

does not recognize any specific time period as constituting a reasonable time as a

matter of law. Coleman v. Rotana, Inc., 778 S.W.2d 867, 872 (Tex. App.—Dallas

1989, writ denied). Instead, whether a tenant abandons the premises within a

reasonable time is generally a question of fact. Id. Reasonableness depends on the

facts and circumstances of the particular case. See Downtown Realty, Inc. v. 509

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Tremont Bldg., Inc., 748 S.W.2d 309, 311 (Tex. App.—Houston [14th Dist.] 1988,

no writ). Thus, it is an issue particularly well-suited to the factfinder. See Dallas

City Limits Prop. Co., L.P. v. Austin Jockey Club, Ltd., 376 S.W.3d 792, 800 (Tex.

App.—Dallas 2012, pet. denied) (questions of reasonableness are inherently issues

for the factfinder). Here, the record establishes that part of Tenant’s tenancy was

during the COVID-19 pandemic when businesses were restricted in how they could

conduct business and that Tenant decided to purchase a property, which arguably

could impact the time to abandon the premises. Under these unique circumstances,

we cannot conclude the trial judge erred in impliedly concluding Tenant vacated

within a reasonable period of time. To the extent a showing of constructive eviction

was required to establish a breach of the quiet enjoyment provision of the

Commercial Lease Agreement, we conclude the evidence was legally sufficient to

support the trial court’s finding. See Fulgham, 349 S.W.3d at 157; see also Lazell

v. Stone, 123 S.W.3d 6, 12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

In her third issue, Landlord asserts the trial court erred in finding the breaches

of the lease agreement by Tenant were not material. Landlord contends Tenant’s

failure to timely provide proof of insurance and failure to receive Landlord’s

permission to install security cameras were material breaches of the Commercial

Lease Agreement.

Paragraph XII of the Commercial Lease Agreement titled “PROPERTY

INSURANCE” provides, in part:

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Landlord and Tenant shall each maintain appropriate insurance for their
respective interests in the Premises and property located on the
Premises. Tenant’s insurance shall be an amount not less than $50,000
(fifty thousand dollars). Landlord shall be named as an additional
insured party on any and all such policies. Tenant shall deliver
evidence to Landlord as proof of adequate insurance in force issued by
companies reasonably satisfactory to Landlord.

Paragraph VII of the Commercial Lease Agreement titled “USE OF PREMISES”

provides, in part:

Tenant makes no modifications to the fixtures, layouts, or building
premises without the Landlord’s permission.

The law is well settled that a material breach by one party excuses

performance by the other party. Mustang Pipeline Co. v. Driver Pipeline Co., 134

S.W.3d 195, 196 (Tex. 2004). Thus, the question presented is whether, based on the

evidence presented, the trial court erred in finding Tenant’s alleged breaches of the

PROPERTY INSURANCE and USE OF PREMISES provisions were not material

breaches of the agreement excusing Landlord’s performance.

As an initial matter we note that the evidence established the cameras Tenant

installed where not affixed to the building. They were simply placed on shelves or

counters. Accordingly, Tenant did not violate the provision prohibiting

modifications to the fixtures, layouts, or building premises without Landlord’s

permission by installing same. See Fixture, BLACK’S LAW DICTIONARY (11th ed.

2019) (fixture defined as “[p]ersonal property that is attached to land or a building

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and that is regarded as an irremovable part of the real property, such as a fireplace

built into a home.”).

Whether Tenant’s failure to timely provide Landlord with proof of insurance

was a material breach is ordinarily a question of fact to be determined based on

several factors, including the following:

(a) The extent to which the injured party will be deprived of the benefit which
he reasonably expected;

(b) The extent to which the injured party can be adequately compensated for
the part of that benefit of which he will be deprived;

(c) The extend to which the party failing to perform or to offer to perform will
suffer forfeiture;

(d) The likelihood that the party failing to perform or to offer to perform will
cure his failure, taking account of the circumstances including any
reasonable assurances; and

(e) The extent to which the behavior of the party failing to perform or to offer
to perform comports with standards of good faith and fair dealing.

See RESTATEMENT (SECOND) OF CONTRACTS § 241; Mustang Pipeline, 134

S.W.3d at 199.

A court’s primary consideration in determining the materiality of a breach is

the extent to which the other party will be deprived of the benefit it reasonably could

have anticipated had the breach not occurred. Hernandez v. Gulf Grp. Lloyds, 875

S.W.2d 691, 693 (Tex. 1994). The less the other party is deprived of the expected

benefit, the less material the breach. Id. Landlord does not contend she was deprived

of an expected benefit; she contends that by failing to timely provide proof of

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insurance, Tenant failed to conform with standards of good faith and fair dealing,

only one of the relevant factors. Moreover, the evidence showed Tenant ultimately

complied with the insurance provision. Accordingly, we conclude more than a

scintilla of evidence exists to support the trial court’s finding Tenant’s failure to

provide proof of insurance was not a material breach of the Commercial Lease

Agreement. See Fulgham, 349 S.W.3d at 157. We overrule Landlord’s third issue.

IV. Damages

In her fifth issue, Landlord asserts the trial court erred in awarding Tenant

damages because she should not have prevailed on her breach of contract claim and,

in addition, the evidence of damages was speculative and factually and legally

insufficient. We have already resolved Landlord’s legal sufficiency complaints

concerning the trial court’s breach of contract findings against her and given our

disposition of this issue on the sufficiency of the evidence of damages, we need not

address the separate issue of the factual sufficiency of the evidence to support the

breach of contract findings. TEX. R. APP. P. 47.1. Thus, we limit our discussion here

to Landlord’s contention Tenant did not present competent evidence of damages.

With respect to damages in breach of contract cases, the general rule is that

“the complaining party is entitled to recover the amount necessary to put him in as

good a position as if the contract had been performed.” Smith v. Kinslow, 598

S.W.2d 910, 912 (Tex. App.—Dallas 1980, no writ) (citation omitted). Put another

way, in a breach of contract case, the normal measure of damages is just

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compensation for the loss or damage actually sustained, commonly referred to as

the benefit of the bargain. See SAVA Gumarska in Kemijska Industria D.D. v.

Advanced Polymer Scis., Inc., 128 S.W.3d 304, 325 n.6 (Tex. App.—Dallas 2004,

no pet.).

The damages the trial court awarded were predicated on Tenant’s evidence

concerning the difference in the market rental value for the space Tenant occupied

upon leaving the leased premises and the rent she would have paid had she remained

in the leased premises for the entire term of the Commercial Lease Agreement. In

calculating these damages, Tenant had to establish the fair market rental value of

same. See City of Austin v. Teague, 570 S.W.2d 389, 395 (Tex. 1978); Wood v.

Kennedy, 473 S.W.3d 329, 338 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(citing City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001)).

The rental value of property must be established with reasonable certainty.

Teague, 570 S.W.2d at 395. Under the “Property Owner Rule,” a property owner

may testify to the value of his property, including the rental value.2 Nat. Gas

Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012); A.G.E., Inc. v.

Buford, 105 S.W.3d 667, 677 (Tex. App.—Austin 2003, pet. denied). The rule

creates a rebuttable presumption that a landowner is personally familiar with his

2
The Property Owner Rule falls under Texas Rule of Evidence 701, which allows a lay witness to
provide opinion testimony if it is rationally based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony or the determination of a fact issue. Justiss, 397 S.W.3d at 157
(citing TEX. R. EVID. 701).
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property and knows its fair rental value and, thus, is qualified to express an opinion

about that value. Wood, 473 S.W.3d at 336. As such, the property owner is

permitted an exception to the general rule that a witness must first establish his

qualifications to opine on property values before he may testify. Justiss, 397 S.W.3d

at 157.

Nevertheless, to be admissible, a qualified owner’s testimony must still meet

the same requirements as any other opinion evidence. Id. at 156. An owner’s

valuation testimony must be relevant. Wood, 473 S.W.3d at 337. An owner’s

valuation testimony is not relevant if it is conclusory or speculative. Id. As with

expert testimony, property valuations may not be based solely on a property owner’s

ipse dixit. Justiss, 397 S.W.3d at 159. That is, the property owner “may not simply

echo the phrase ‘market value’ and state a number to substantiate his [valuation].”

Id. His subjective opinion, by itself, will not provide relevant evidence of value. Id.

Instead, to be relevant, the witness “must provide the factual basis on which his

opinion rests.” Id. “Evidence of price paid, nearby sales, tax valuations, appraisals,

online resources, and any other relevant factors [here possibly rent per square foot

for comparable commercial properties] may be offered to support the [valuation].”

Id. Even if unchallenged, the testimony must support a determination, and

conclusory or speculative statements do not. Id.

In support of the measure of damages the trial court awarded, Tenant

calculated the amount of rent she would have paid to Landlord for the remaining

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lease term, based upon historical data, and compared that to the fair market rent she

would pay for the property she purchased for that same period of time, to arrive at

her damage calculation of $50,642.16. With respect to the fair market rental value

of the property Tenant purchased, the testimony concerning same was limited to the

following:

Q. For you to rent that space that you have now - - if you were to
have it for rent, what would be the market rent for that space be?

A. 3,500 to 5,000 a month.

While Tenant may have been qualified to testify about the fair market rental

value of the building she purchased, she did not provide a proper factual basis to

support her valuation. When, as here, the evidence does not indicate the factual basis

behind the witness’s valuation, such evidence is legally insufficient to sustain a

judgment regarding the reasonable rental value of property. See Justiss, 397 S.W.3d

at 159. We sustain Landlord’s fifth issue.

Having sustained Landlord’s fifth issue, we must determine whether it is

appropriate to render judgment or remand the case for a new trial. Here, the market

rental value of the property Tenant purchased was a component of the measure of

Tenant’s damages. The other component was the rent she would have paid to

Landlord had she remained in the leased space. The evidence established Tenant

was afforded a reduced rental rate under the Commercial Lease Agreement. Because

of Landlord’s breaches of the Commercial Lease Agreement, Tenant did not obtain

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the benefit of the reduced rent for the entire term of the agreement. Thus, while the

evidence is legally insufficient to support the damages awarded in the amount of

$50,642.16, there is some evidence Tenant suffered damage as a result of Landlord’s

breaches.

When there is some evidence of damages, but not enough to support the full

amount, it is inappropriate to render judgment. Akin, Gump, Strauss, Hauer & Feld,

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009). In this

situation, we may remand to the trial court for a new trial. Formosa Plastics Corp.

USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 51 (Tex. 1998)

(holding appellate court can remand for new trial when no evidence supports

damages awarded but there is evidence of some damages); see also A.B.F. Freight

Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 616 (Tex. App.—Dallas

1990, writ denied) (finding that, although plaintiff did not prove its damages with

reasonable certainty, there was some evidence of damages generally, and interests

of justice, therefore, required remand for new trial). Because liability is contested

in this case, we cannot order a new trial solely on the issue of unliquidated damages.

See TEX. R. APP. P. 44.1(b) (appellate court may not order a separate trial on

unliquidated damages if liability is contested). Accordingly, here, we will remand

this case for a new trial on liability and damages.

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CONCLUSION

We reverse the trial court’s judgment awarding Tenant damages and

attorney’s fees on her breach of contract claim, remand for a new trial on Tenant’s

breach of contract claim and affirm the judgment in all other respects.

/Nancy Kennedy/
NANCY KENNEDY
230135F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DIANE PIWKO, Appellant On Appeal from the 429th Judicial
District Court, Collin County, Texas
No. 05-23-00135-CV V. Trial Court Cause No. 429-05314-
2019.
STACEY ACEVEDO, Appellee Opinion delivered by Justice
Kennedy. Justices Molberg and
Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court’s judgment awarding appellee breach of contract damages and
attorney’s fees. In all other respects, the trial court’s judgment is AFFIRMED. We
REMAND this cause to the trial court for further proceedings consistent with this
opinion.

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

Judgment entered this 27th day of June 2024.

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