CenterPlace Properties, Ltd. v. Columbia Medical Center of Lewisville Subsidiary, L.P. D/B/A Medical Center of Lewisville and Raymond Dunning

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00049-CV

CENTERPLACE PROPERTIES, APPELLANT
LTD.

V.

COLUMBIA MEDICAL CENTER OF APPELLEES
LEWISVILLE SUBSIDIARY, L.P.
D/B/A MEDICAL CENTER OF
LEWISVILLE AND RAYMOND
DUNNING

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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OPINION

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I. Introduction

This is a breach of contract case. Appellant CenterPlace Properties, Ltd.

(CenterPlace) appeals an adverse judgment following a bench trial in a suit for

breach of a lease agreement that CenterPlace filed against Appellee Columbia
Medical Center of Lewisville Subsidiary, L.P. d/b/a Medical Center of Lewisville

(MCL) and Raymond Dunning. 1 The trial court’s judgment ordered that

CenterPlace take nothing against MCL based upon findings that CenterPlace

materially breached the parties’ lease agreement and that CenterPlace’s breach

excused MCL’s failure to pay rent after November 1, 2007. The judgment further

ordered that CenterPlace pay MCL $34,071.15 in statutory damages and a total

of $319,700 in attorneys’ fees and costs. CenterPlace contends in four issues,

which include several subissues, that the evidence is legally and factually

insufficient to support the findings and judgment and that the trial court erred by

awarding attorneys’ fees to MCL and in failing to award attorneys’ fees to

CenterPlace. We reverse and render in part and affirm in part.

II. Background

Ganesh Harpavat, general partner of CenterPlace, formed CenterPlace in

1998 to develop a commercial property complex on three tracts of land that he

owned in Flower Mound, Texas. Harpavat’s development plan was to construct

three medical office buildings referred to as CenterPlace I, CenterPlace II, and

1
Dunning was named as a defendant, individually, in the trial court, having
been CEO of MCL at the time the lease was negotiated and executed. He retired
in 2005. The final judgment orders that CenterPlace take nothing both as to MCL
and Dunning. Although he is named in the style of the case on appeal,
CenterPlace has not sought reversal of the take-nothing judgment as to him.

2
CenterPlace III. CenterPlace I was completed in 1998, and CenterPlace II was

completed in 2004. 2

In 2004, CenterPlace and MCL began negotiations for MCL to lease space

in CenterPlace II for an ambulatory surgery center or medical and administrative

offices. On November 22, 2004, CenterPlace and MCL entered into a ten-year

lease (the lease) covering approximately 17,300 square feet, the entire first floor

of CenterPlace II (the premises). At that time, MCL planned to build out the

premises for use as an ambulatory surgery facility.

Section 10 of the lease provided that “[t]he parties acknowledge and agree

that [MCL] may make alterations and improvements to the interior of the Leased

Space in order to prepare the Leased Space for use by [MCL] as medical offices

and/or an outpatient surgery facility.” Another part of Section 10 required that

CenterPlace provide MCL an allowance of $536,200 for tenant improvements

(the TI funds) to finish out the premises. CenterPlace was required to provide

the TI funds to MCL “on or before the Commencement Date, or if Landlord and

Tenant shall agree, in installments as the [w]ork progresse[d].” 3

Section 10(c) of the lease required that MCL, within thirty days of the lease

date, submit to CenterPlace for approval “a space plan which in outline form

2
At the time of trial, construction had not begun on CenterPlace III.
3
The lease defined “Commencement Date” as the earlier of the date MCL
opened for business in the leased space or 180 days from the date the lease was
executed by both parties.

3
shows the layout and configuration of the Leased Space.” If CenterPlace did not

make any written comments or objections to the space plan within ten days, the

lease provided that CenterPlace was “deemed to have approved” the plan. MCL

submitted a space plan for an ambulatory surgical center to CenterPlace on

December 21, 2004. The parties disagreed at trial as to whether the space plan

provided by MCL complied with the lease’s terms, but it is undisputed that

CenterPlace did not comment about or object to the space plan within ten days.

Although it had provided a space plan to CenterPlace, MCL did not start

finishing out the interior of the premises. MCL presented evidence that it did not

find adequate physician interest to support its plans for an ambulatory surgery

center and that it proposed to move forward immediately with alternate plans for

a diagnostic imaging center and a pediatric urgent-care clinic. CenterPlace

expressed its disapproval with MCL’s alternate plans, particularly regarding the

proposed imaging center as possibly competing with an existing tenant, but

Harpavat testified that it was very important to him that MCL had represented to

him that it was going to proceed immediately. The parties then disputed whether

MCL had breached the lease or fraudulently induced CenterPlace into the lease.

The parties’ dispute evolved into discussions about amending the lease.

On June 28, 2006, CenterPlace and MCL entered into an agreement titled

“First Amendment to Lease Agreement” (the amended lease) that altered several

provisions of the lease but that also ratified the lease’s unchanged provisions. A

new paragraph 4 regarding use of the premises was substituted, providing that

4
the premises “may be used for health care and related uses, including but not

limited to the operation of an outpatient imaging center, urgent care center, ‘after

hours’ pediatric clinic, sleep lab and/or outpatient ambulatory surgery center, or

medical offices.” Paragraph 10 of the amended lease granted CenterPlace the

right to terminate the lease “upon thirty (30) days[’] written notice to [MCL] in the

event that the Tenant Improvements, as defined in the Lease, [were] not

completed on or before March 15, 2007.” Paragraph 10 also provided MCL the

alternate option of partially building out the premises so long as the partial build-

out “present[ed] the appearance of a fully built out office suite or suites.” The

amended lease also increased MCL’s monthly rent obligation from $21,243.25 to

$33,557.59 per month. 4

In November 2006, MCL provided a plan to CenterPlace for the imaging

center and for a partial finish-out and requested the remaining TI funds. But,

according to Harpavat, MCL did not commit to a completion date. In December,

Beck Construction Company and MCL met with Harpavat regarding the plans for

both the partial and complete finish-out. Harpavat approved moving forward by

MCL to obtain the building permit from the city, which MCL expected to take four

to six weeks, until sometime in January, and Harpavat verbally approved the

partial finish-out. However, MCL did not complete (or even start) construction of

either the complete or partial finish-out of the premises by March 15, 2007. From

4
The $33,557.59 rent amount was later increased by 2% to $34,071.15
pursuant to section 2(c) of the lease.

5
January to May 2007, MCL sought an extension of the March 15, 2007 date, and

the parties attempted to negotiate another amendment to the lease.

On May 10, 2007, CenterPlace wrote to MCL, stating its position that MCL

had defaulted on the lease by failing to timely provide a new space plan and by

failing to obtain all necessary government permits, authorizations, and approvals.

CenterPlace gave MCL thirty days to cure the alleged defaults. By letter dated

June 13, 2007, CenterPlace declared MCL in default of the lease and the

amended lease but stated its intention to keep the leases in effect, and

CenterPlace demanded payment of accelerated rent of $3,221,397.50 within

seven days. CenterPlace warned MCL that it would remove MCL’s signs from

the premises at MCL’s expense if MCL did not do so within fourteen days. In

subsequent letters to MCL, CenterPlace continued to require removal of MCL’s

signs and stated that “[n]o resolution will include [MCL’s] future occupation of the

premises.” 5

From the inception of the lease, MCL had paid all rent as due, and it

continued to pay rent beyond the agreed completion date of March 15, 2007,

through October 2007, while the parties tried to negotiate an extended

completion date. 6 Negotiations broke down on October 26, 2007, when MCL

5
It is undisputed that CenterPlace had retained the key to the premises at
all times and that MCL had previously gained access to the premises by
contacting Harpavat and meeting him at the premises.
6
MCL paid a total of $1,017,149.48 in rent from the inception of the lease
to November 1, 2007.

6
formally notified CenterPlace that it was terminating the lease and amended

lease and would no longer pay rent as of November 1, 2007. CenterPlace filed

this lawsuit against MCL in January 2008, alleging causes of action for breach of

contract, fraud, and money had and received. MCL denied that it had breached

the lease and alleged that CenterPlace had committed prior material breaches of

the lease that excused MCL from paying rent. MCL also alleged that

CenterPlace had violated Texas Property Code section 93.002 by intentionally

preventing MCL from entering the premises.

Trial was to the court over thirteen days, after which the trial court signed a

judgment that CenterPlace take nothing on its claims 7 and that awarded MCL

$319,700 in attorneys’ fees and expenses and $34,071.15 in statutory damages

for CenterPlace’s violation of property code section 93.002. The trial court also

entered original findings of fact and conclusions of law and amended findings of

fact. This appeal followed.

III. Standards of Review

Findings of fact entered in a case tried to the court have the same force

and dignity as a jury=s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury=s

7
The trial court granted MCL’s motion for directed verdict as to
CenterPlace’s fraud claims. CenterPlace has not appealed that ruling.

7
answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

8
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

IV. Material Breach of Lease by CenterPlace

The trial court found that MCL breached the lease and amended lease by

failing to pay rent after November 1, 2007. The trial court also found, however,

that MCL’s breach was excused by CenterPlace’s prior breaches of the lease

and amended lease before MCL stopped paying rent. CenterPlace argues in its

first issue that the evidence is legally and factually insufficient to support the trial

court’s findings of material breaches by CenterPlace prior to November 1, 2007.

A. Violation of Texas Property Code Section 93.002

CenterPlace argues in the first part of its first issue that there is legally and

factually insufficient evidence to support the trial court’s findings that CenterPlace

breached the lease by intentionally preventing MCL from entering the premises,

thereby also violating property code section 93.002(c). Property code section

93.002(c) states that a commercial landlord “may not intentionally prevent a

tenant from entering the leased premises except by judicial process” unless one

of three exceptions applies. 8 See Tex. Prop. Code Ann. § 93.002(c) (West

2007).

8
The parties agree that the three exceptions are inapplicable in this case.

9
 1. Relevant Facts

On May 10, 2007, CenterPlace gave notice to MCL of alleged default by

failing to provide a space plan within thirty days of signing the lease and by failing

to obtain all necessary government permits and approvals. CenterPlace advised

MCL that it had thirty days to cure the alleged defaults. On June 13, 2007,

CenterPlace declared MCL to be in default and made demand that MCL pay

$3,213,987.50 in accelerated rent, $7,500 in attorneys’ fees, and any additional

costs incurred by CenterPlace in reletting the property. The June 13 letter also

stated:

In order to mitigate its damages, CenterPlace will be removing
[MCL’s] signage from the building. If you have not made
arrangements with the undersigned and removed the signage by
Wednesday, June 27, 2007[,] CenterPlace shall remove the
signage. If CenterPlace removes the signage, any costs incurred in
the removal and storage shall be added to CenterPlace’s damages
claim against [MCL].

On June 14, 2007, CenterPlace’s counsel responded by letter to a

telephone call and e-mail from MCL’s counsel. The June 14, 2007 letter included

the following:

In your email, you ask about CenterPlace’s “motives and
objectives.” CenterPlace wants a tenant that will do what it says it
will do. CenterPlace wants a tenant to finish out the premises and
move in so as to make the remaining portions of the building viable.
In spite of [CenterPlace’s] repeated efforts, [MCL] clearly is not such
a tenant. Our discussions and negotiations of this year have borne
no fruit. CenterPlace carefully considered, but ultimately rejected,
[MCL]’s offers to wait yet another year for [MCL] to complete the
construction. I am not authorized to negotiate further amendments
to the Lease.

10
 CenterPlace will seek to replace [MCL] as quickly as
possible[,] thereby mitigating its damages. As [MCL] will not be
occupying the premises, its signage must be removed as quickly as
possible. It is difficult to relet the premises with [MCL]’s signage on
the building. Again, [MCL] has until Wednesday, June 27, 2007, to
make arrangements to remove the signage or CenterPlace will have
it removed. All costs incurred shall be added to CenterPlace’s
damages claim against [MCL].

Please let me know if [MCL] is willing to work with
CenterPlace regarding removing the signage and the payment of
future rents. [Emphasis added.]

CenterPlace wrote again to MCL on June 21, 2007, declaring that MCL

was in default, this time stating in relevant part as follows:

We are willing to have discussions regarding a resolution to
the dispute. However, we will not negotiate further amendments to
the Lease. No resolution will include [MCL’s] future occupation of
the premises.

....

[MCL] is in default of the Lease. It does not have any
remaining exclusive use rights. Again, [MCL] has not and will not
occupy the premises. CenterPlace will be removing the signage and
reletting the premises. CenterPlace not only has the right to do so,
but it has the obligation to mitigate its damages caused by
[MCL]. . . .

Either [MCL] is in default, as we contend; or CenterPlace has
a right to unilaterally terminate the Lease, as you contend. In either
case, [MCL] no longer has any right of possession. Therefore,
[MCL] has no basis for the injunction that you have threatened. If
you wish to seek such relief, we are willing to accept service,
coordinate the date for such a hearing, and delay removing the
signage until the matter can be heard. Alternatively, [MCL] can
coordinate with CenterPlace to get the premises relet as quickly as
possible thereby reducing the damages [MCL] owes to CenterPlace
and the waste of litigation.

11
 Based upon our conversation, we will refrain from removing
the signage until June 29, 2007[,] in order to allow [MCL] time to
determine how it would like to proceed. Please let me know your
intentions by early next week. [Italicized emphasis added.]

Finally, a July 24, 2007 letter from CenterPlace to MCL stated in part that

“[c]ontinued discussion related to [MCL]’s future occupancy” was conditioned on

specific terms. The conditional terms were not contained in the lease or the

amended lease and, if accepted by MCL, would have among other changes

prevented MCL from operating a stand-alone imaging center on the premises

and required the removal of MCL’s signage at MCL’s expense until MCL

occupied the premises and leased 60% of the total square footage of

CenterPlace II.

2. Analysis

CenterPlace argues that even though it at all times maintained the key to

the property and sent the June 21 letter advising MCL that it no longer had a right

to possession of the property, it did not violate section 93.002(c) because it did

not intentionally prevent MCL or any of MCL’s representatives from access to the

property. CenterPlace points to undisputed evidence that CenterPlace had

always possessed the key to the property with MCL’s consent, that MCL had

never objected or requested a key, that CenterPlace had always allowed MCL

access to the property when MCL requested it, that MCL did not request access

to the property after it received the June 21 letter, and that CenterPlace never

denied MCL access to the property.

12
 MCL responds that section 93.002(c) prohibits a landlord from wrongfully

excluding a tenant from the property, that the statute does not require a physical

act of exclusion before there can be a violation, and that the statute applies to

both actual and constructive denials of entry. MCL argues that it had not

breached the lease or amended lease as of the June or July 2007 letters and

points to the letters from CenterPlace that demanded removal of MCL’s signs

and unequivocally expressed an intent that MCL no longer occupy the premises

as evidence that CenterPlace violated section 93.002(c).

This part of CenterPlace’s first issue presents a question of statutory

construction. 9 The facts regarding this issue are undisputed. As this court

recently stated,

Issues of statutory construction present questions of law that we
review de novo applying well-established rules of construction. First
Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008), cert.
denied, 129 S. Ct. 2157 (2009). Our primary objective in statutory
construction is to give effect to the legislature’s intent. State v.
Shumake, 199 S.W.3d 279, 284 (Tex. 2006). To achieve this, “we
look first and foremost to the words of the statute.” Lexington Ins.
Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We construe the
statute’s words according to their plain and common meaning,
unless a contrary intention is apparent from the context or unless
such a construction leads to absurd results. City of Rockwall v.
Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008); see also Tex. Gov’t

9
MCL contended, and the trial court found, that prior to the time MCL
ceased paying rent in November 2007, CenterPlace notified MCL that its right of
possession was terminated and that it would no longer be allowed to enter the
premises, which notice—under the circumstances of this case—physically
excluded MCL from the premises, thus “intentionally prevent[ing]” MCL from
entering the premises and constituting both a breach of the lease agreements
and a violation of property code section 93.002.

13
 Code Ann. § 311.011(a) (West 2005) (“Words and phrases shall be
read in context and construed according to the rules of grammar and
common usage.”).

Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 619–20 (Tex. App.—

Fort Worth 2011, pet. denied). In addition, we consider “the objective the law

seeks to obtain and the consequences of a particular construction.” Id. at 620

(citing Tex. Gov’t Code Ann. § 311.023(1), (5) (West 2005)). “In enacting a

statute, it is presumed that a just and reasonable result is intended.” Id. (citing

Tex. Gov’t Code Ann. § 311.021(3) (West 2005)).

Property code section 93.002(c) prohibits a commercial landlord from

“intentionally prevent[ing] a tenant from entering the leased premises.” Tex.

Prop. Code Ann. § 93.002(c). The trial court could have unquestionably

concluded that CenterPlace, through the series of letters to MCL in June and July

2007, expressed its intent that MCL no longer occupy the premises. But

CenterPlace’s stated intent is not dispositive of whether it violated section

93.002(c) because the statute requires that the landlord intentionally “prevent a

tenant from entering the leased premises.” Id. MCL never requested access to

the premises at any time after CenterPlace expressed its intent that MCL no

longer occupy the premises. The question, then, is whether section 93.002(c)

requires that the landlord take some action beyond making written demands—

such as changing the locks or refusing access upon request by the tenant—

before it can be found to have intentionally prevented the tenant from entering

the premises, or whether a landlord may violate the statute by wrongfully

14
accusing the tenant of breaching the lease and demanding that the tenant vacate

the premises. 10

Only three Texas cases guide our analysis. 11 In Gluck v. Hadlock, No. 02-

09-00411-CV, 2011 WL 944439, at *2–3 (Tex. App.—Fort Worth Mar. 17, 2011,

no pet.) (mem. op.), this court held that legally and factually sufficient evidence

supported the jury’s finding that a residential landlord had violated property code

section 92.0081 by intentionally preventing the tenant from entering the leased

premises. We noted the conflicting evidence in the record but held that the

evidence was sufficient because the landlord had entered the house without the

tenant’s permission and had moved the tenant’s personal items to the curb

before the lease term expired, the landlord had told the tenant before the lease

term expired that he would immediately lease the house to someone else,

someone had answered the telephone when the tenant called the house before

his lease term expired, and the tenant testified that he felt he could not return to

the property because someone else was living there. Id.

10
The same question—what is meant by “intentionally preventing”—applies
both to the trial court’s finding that CenterPlace violated section 93.002 and to its
separate finding that CenterPlace breached the lease and amended lease by
“intentionally preventing” MCL from entering the leased premises.
11
Two of the three cases address property code section 92.0081, which is
the residential-lease version of section 93.002. The two statutes are identical in
all material respects for the purposes of this case, and we thus look to
interpretations of section 92.0081 to guide our analysis here. Compare Tex.
Prop. Code Ann. § 92.0081(b) (West Supp. 2012), with id. § 93.002(c).

15
 The second case is Abney Group, Inc. v. Robson, No. 03-96-00441-CV,

1996 WL 727386 (Tex. App.—Austin Dec. 19, 1996, no writ) (not designated for

publication). There, Abney Group was a month-to-month tenant in a warehouse.

Id. at *1. Abney Group and the landlord negotiated for a higher monthly rent and

payment of utilities, but the negotiations were unsuccessful. Id. The landlord

then advised Abney Group to vacate the premises by August 1, 1995, and Abney

Group complied. Id. Before that date, however, the landlord changed the locks

on the fence surrounding the warehouse and locked the gate on July 25 and 26.

Id. The landlord did not, however, change the locks to the warehouse office

through which Abney could access the warehouse space. Id. at *2. Also, one of

Abney’s employees had a key to the warehouse office at all times. Id. The

landlord testified that “he slept in the office building on the premises during the

two nights in question,” that “no one came to the office to request that he open

the gate,” and that “he would have done so had such a request been made by an

Abney representative.” Id. On that evidence, the court held that an “‘actual

physical denial of a tenant’s right of entry’ as contemplated by section

93.002(c)(3) of the Property Code” was not conclusively established. Id. (quoting

Michaux v. Koebig, 555 S.W.2d 171, 176 (Tex. Civ. App.—Austin 1977, no writ)).

In Michaux, the landlords gave the tenants written notice to vacate for

disorderly conduct because the tenants had allegedly failed to follow the

landlords’ parking policy and had argued with the apartment manager. See 555

S.W.2d at 174. The written notice stated, “Because of disorderly conduct in and

16
on a public place, according to Penal Code 4201 . . . you are asked to vacate the

premises within three (3) days.” Id. The tenants peacefully vacated the

apartment “in accord with [the] notice from the apartment manager.” Id. In their

suit against the landlords, the tenants alleged that they were “wrongfully

excluded from their apartment by an implied threat of criminal complaint.” Id. at

173.

After quoting the predecessor statute to property code section 92.0081, 12

the court observed that “[t]he purpose of Article 5236c is to deprive landlords of

certain self-help devices” and that “Article 5236c is concerned with actual

physical denial of a tenant’s right of entry, as particularly exemplified by the

changing of door locks, or constructive denial of entry or physical use of an

apartment by interruption of utility service as prohibited by Article 5236c, sec. (1)

(1973).” Id. at 176. The court then held,

In the present case there was no physical exclusion. The
landlords’ only act was to post on the appellees’ door a request that
they vacate the premises.

....

The record does not disclose willful exclusion of the tenants
from their apartment by the landlord. There was only a written notice
of the termination of the residents’ rights of occupancy.

12
The predecessor statute stated in relevant part as follows: “It shall be
unlawful for a landlord or his agent to willfully exclude a tenant from the tenant’s
premises in any manner except by judicial process. Willful exclusion shall mean
preventing the tenant from entering into the premises with intent to deprive the
tenant of such entry. . . .” Id. at 175 (emphasis added) (quoting Tex. Rev. Civ.
Stat. Ann. art. 5236c (1973)).

17
Id.
From these cases, it is evident that Texas law requires a landlord to do

something more than post a notice to vacate or send a letter advising the tenant

that it no longer has a right to possession before the landlord can be said to have

violated property code section 93.002(c). In Gluck, the landlord removed the

tenant’s personal property and relet the premises before the tenant’s lease term

had expired, thus excluding the tenant from the premises. See 2011 WL 944439,

at *2–3. In Abney Group, the evidence did not conclusively prove a violation of

section 93.002 because, even though the landlord had changed the locks to the

perimeter fence, Abney Group could have accessed the property through the

office but did not request access. See 1996 WL 727386, at *2. And in Michaux,

the court reversed and rendered judgment against the tenants, holding that the

landlord’s notice to vacate was not an actual physical denial of the tenants’ right

of entry into the apartment. See 555 S.W.2d at 176. The Michaux court

suggested that physical exclusion through an act such as changing the locks or

interrupting utilities is required before a landlord may be found to have violated

the statute. Id.

As interpreted by those cases, the statute requires that a landlord

intentionally take some action to prevent entry, beyond giving a tenant a notice to

vacate, before the landlord incurs liability under section 93.002(c). If a notice of

default or to vacate were all that the statute required, section 93.002(c) would

arguably create landlord liability in each instance in which a landlord even

18
mistakenly believes a tenant has violated the lease and intentionally gives notice

to vacate. See Tex. Gov’t Code Ann. § 311.023(1), (5) (providing that courts

may consider the “object sought to be attained” and the “consequences of a

particular construction” when construing a statute).

Consistent with the above cases, we hold that some level of landlord self-

help beyond a notice of default or to vacate is required to create liability under

section 93.002(c). Although CenterPlace had possession of the key at all times,

it is undisputed that CenterPlace had always permitted MCL access to the

premises when MCL requested it and that MCL did not request access to the

premises at any time after CenterPlace sent the June 21 letter. In other words,

nothing changed with regard to MCL’s ability to enter the premises other than

issuance of the demand letters. CenterPlace did not take any action—such as

changing the locks, cutting off the utilities, reletting the premises to another

tenant, or denying a request from MCL for access to the premises—that actually

prevented MCL from entering the premises. The demand letters were legally

incorrect and used sharp language, but notices alone are legally insufficient

evidence of a section 93.002(c) violation. See Michaux, 555 S.W.2d at 176.

Section 93.002(c) prohibits a landlord from “intentionally prevent[ing] a

tenant from entering the leased premises.” See Tex. Prop. Code Ann. §

93.002(c) (emphasis added). Considering the statutory language and the judicial

interpretations of the statute, the evidence in this case is legally insufficient to

support a determination that CenterPlace intentionally prevented MCL from

19
entering the premises. We therefore sustain the first part of CenterPlace’s first

issue.

B. Failure to Release Tenant Improvement Funds

CenterPlace contends in the fourth sub-part of its first issue that the

evidence is legally and factually insufficient to support the trial court’s findings

that MCL made a timely request for the TI funds available under the lease and

amended lease and that despite repeated requests, CenterPlace refused to

release the full amount of the TI funds upon MCL’s timely requests as well as the

implied finding that CenterPlace’s refusal constituted a prior material breach that

excused MCL’s failure to pay rent after November 1, 2007.

Section 10(e) of the lease states in relevant part,

(e) Upon written notice from Tenant received not later than
ninety (90) days following the Lease Date, Landlord shall provide
Tenant with an allowance (the “Allowance”) to fund the cost of the
Tenant Improvements . . . . Tenant shall pay and be responsible for
all costs of the Tenant Improvements in excess of the Allowance.
Landlord shall pay the Allowance to Tenant on or before the
Commencement Date, or if Landlord and Tenant shall agree, in
installments as the Work progresses. [Italicized emphasis added.]

CenterPlace argues that it was not required to release the TI funds to MCL

in one lump sum because “the evidence conclusively shows that MCL requested

the funds be paid as work progresses” and because “there is no evidence that

CenterPlace ‘refused’ to release any funds.” CenterPlace points to evidence that

MCL requested $95,000 in TI funds by letter in February 2005 within 90 days of

the lease date and that CenterPlace released those funds as requested.

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CenterPlace also points to the remainder of the February 2005 letter from MCL,

which states, “As to the balance of the funds, we will remain in contact with you

as to when and how we would prefer to draw those funds.” CenterPlace says

that MCL’s next request for TI funds was by letter dated December 18, 2006, but

that MCL wrote again to CenterPlace within three days on December 21, 2006,

stating, “If we do not hear from you on this issue by January 19th, we will accept

this as permission to have all invoices sent directly to your attention for

payment.” 13 Continuing, CenterPlace contends that “[i]t is undisputed that

CenterPlace did not object to being invoiced directly” and that MCL never sent

CenterPlace an invoice for payment of the remaining TI funds.

MCL counters that MCL made requests throughout November and

December 2006 for the release of all remaining TI funds and that CenterPlace

refused each request. MCL points to testimony by Douglas Welch, CEO of MCL

after Dunning’s retirement in mid-2005, that MCL desired to use the TI funds as

of November 13, 2006; that MCL sent CenterPlace a letter to that effect on

November 13, 2006; and that Harpavat’s response to MCL’s request for the TI

funds was that “[h]e wouldn’t allow it.” MCL also relies on Harpavat’s testimony

that Matt Davis, MCL’s chief operating officer at the time and in charge of

development of the first floor project, stated in that November 13 letter that MCL

13
The preceding sentence in the December 21, 2006 letter states, “Please
provide details on how you would like the invoice process for this project to be
handled.”

21
expected to use the remaining $441,200 in TI funds for the desired build-out and

that Harpavat testified he “probably” declined the partial build-out plans because

he did not believe it appropriate to use the TI funds for a partial build-out. MCL

further points to Davis’s testimony that, as of November 13, MCL expected to use

the remaining TI funds as “part of the global budget for this project”; that

Harpavat “would continuously say this does not meet the spirit of the first

amendment and would not provide approval for anything going forward”; that

Harparvat did not provide clarification about the request not meeting the spirit of

the amended lease despite Davis’s request for clarification; that Harpavat did not

respond to MCL’s November 13 or December 18 requests for release of the TI

funds; that Harpavat also did not respond to Davis’s December 20 request for the

remaining TI funds; and that MCL had received a letter dated December 29 from

CenterPlace’s counsel stating that MCL’s request for TI funds was “not

reasonable.” Specifically, the December 29 letter asserted that MCL’s proposed

partial finish-out “does not rise to the standard of a limited finish out of the

Premises” and that “[a]sking [CenterPlace] to pay or consent to the limited

construction as satisfaction of the partial performance contemplated by the

amended Section 13 is not reasonable.”

CenterPlace notes that the December 29 letter ended by stating, “I will

await your call or other correspondence,” and CenterPlace argues that because

MCL never called or otherwise responded to the December 29 letter, the letter is

no evidence or factually insufficient evidence that CenterPlace refused to pay the

22
balance of the TI funds in either a lump sum payment or as the work progressed.

However, a January 11, 2007 letter from CenterPlace’s counsel states that any

extension of the March 15, 2007 build-out date must include additional terms not

contained in the lease or amended lease, including “[a] stated completion date

for construction,” “[a] commitment to commence business by a stated date,” and

“[a]n agreement as to the payment of tenant improvement funds” with the TI

funds “payable only upon the commencement of business by the tenant.”

We hold that legally and factually sufficient evidence supports the trial

court’s findings that CenterPlace breached the lease by failing to release the

remaining TI funds to MCL. The November 13, December 18, and December 21

letters to CenterPlace, combined with the testimony by Welch, Davis, and

Harpavat, establish that MCL had repeatedly requested the release of the

remaining TI funds and that Harpavat would not agree to release them. The

December 29 letter from CenterPlace’s counsel corroborates Harpavat’s

statements to Davis that the partial build-out, for which MCL desired to use the TI

funds, did not meet the “spirit” of the amended lease, and the January 11 letter

from CenterPlace’s counsel supports a determination that CenterPlace refused to

release the remaining TI funds until MCL made further concessions that were not

required by the lease or amended lease. 14

14
The December 29 and January 11 letters also highlight the lack of an
agreement between the parties as to how the remaining TI funds would be
released, whether by lump sum or by CenterPlace’s direct payment of invoices.
In the absence of such agreement, the trial court could have reasonably

23
 Applying the appropriate standards of review to the two entirely different

versions of the facts as testified to and revealed by the written correspondence,

we hold that legally and factually sufficient evidence supports the trial court’s

determination that CenterPlace breached the lease by refusing to release the

remaining TI funds to MCL upon request by MCL. See Cent. Ready Mix

Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807, 827; Pool,

715 S.W.2d at 635. We thus overrule the fourth part of CenterPlace’s first

issue. 15

V. Attorneys’ Fees

CenterPlace argues in its fourth issue that the trial court erred by awarding

MCL its attorneys’ fees and costs and by concluding that CenterPlace was not

entitled to recover its attorneys’ fees and costs pursuant to Section 27 of the

lease agreement.

A. Lease Language

Section 27 of the lease states:

In the event any litigation ensues with respect to the rights, duties
and obligations of the parties under this Lease, the unsuccessful
party in any such action or proceeding shall pay for all costs,

concluded that CenterPlace was obligated to release to MCL the remaining TI
funds upon MCL’s November and December requests.
15
Because we have overruled the fourth part of CenterPlace’s first issue,
we need not address the second and third parts of CenterPlace’s first issue. See
Tex. R. App. P. 47.1. We also need not address CenterPlace’s second or third
issues because those issues are contingent upon CenterPlace’s success on the
entirety of its first issue.

24
 expenses and reasonable attorney’s fees incurred by the prevailing
party in enforcing the covenants and agreements of this Lease. The
term “prevailing party,” as used herein, shall mean the party that
obtains substantially the relief sought by such party, whether by
compromise, settlement or judgment. Further, in the event Landlord
retains legal counsel to enforce any of Tenant’s obligations
hereunder, Tenant shall reimburse Landlord for all reasonable legal
fees incurred by Landlord.

B. MCL as Prevailing Party

CenterPlace first argues that MCL will no longer be the “prevailing party”

as defined by the lease if CenterPlace succeeds on its first three issues because,

in that event, MCL would not have obtained substantially the relief sought by it in

the judgment. We held above, however, that legally and factually sufficient

evidence supports the trial court’s determination that CenterPlace breached the

lease by refusing to release the remaining TI funds to MCL. That breach

excused MCL’s further payment of rent, a conclusion of law by the trial court of

which CenterPlace does not complain. Thus, MCL was and remains the

“prevailing party” under Section 27 of the lease because it obtained through the

judgment substantially the relief it sought in the lawsuit. See Johnson v. Smith,

No. 07-10-00017-CV, 2012 WL 140654, at *3 (Tex. App.—Amarillo Jan. 18,

2012, no pet.) (mem. op.); Silver Lion, Inc. v. Dolphin St., Inc., No. 01-07-00370-

CV, 2010 WL 2025749, at *18 (Tex. App.—Houston [1st Dist.] May 20, 2010, pet.

denied) (mem. op.) (op. on reh’g) (concluding defendant who successfully

defended against breach of contract claim was a “prevailing party” under

attorneys’ fees provision of contract); see also Fitzgerald v. Schroeder Ventures

25
II, LLC, 345 S.W.3d 624, 629 (Tex. App.—San Antonio 2011, no pet.) (holding

defendants who successfully obtained jury findings of no liability resulting in take-

nothing judgment in suit relating to contract were each a “prevailing party”

entitled to attorneys’ fees as provided by contract). We overrule the part of

CenterPlace’s fourth issue that asserts that the trial court erred by awarding

attorneys’ fees and costs to MCL based on Section 27 of the lease and MCL’s

status as the prevailing party in the litigation. 16

C. MCL’s Recovery Under Property Code Section 93.002

MCL’s recovery of attorneys’ fees under property code section 93.002 is a

different matter. The trial court awarded MCL $37,700 in attorneys’ fees for

CenterPlace’s alleged violation of section 93.002(c), but we held above that

legally insufficient evidence supports the trial court’s determination that

CenterPlace violated property code section 93.002(c). Thus, MCL’s attorneys’

fees can only be awarded pursuant to the contract and cannot be awarded

pursuant to section 93.002(g). See Tex. Prop. Code Ann. § 93.002(g)(2)

(providing that tenant may recover reasonable attorneys’ fees and court costs

less any delinquent rents or other sums for which tenant is liable to landlord if

landlord or landlord’s agent violates that section). MCL did not prevail on its

claim under section 93.002(g), nor is it the “prevailing party” under the contract

16
CenterPlace does not argue that MCL would not be a prevailing party
under the lease language in the event we overrule any part of CenterPlace’s first
three issues.

26
language on its counterclaim for damages based on violation of property code

section 93.002. We therefore sustain the part of CenterPlace’s fourth issue that

challenges the trial court’s award of attorneys’ fees to MCL based on

CenterPlace’s alleged violation of section 93.002(c).

D. CenterPlace’s Claim for Attorneys’ Fees

CenterPlace argues in the final part of its fourth issue that the trial court

erred by failing to award it recovery of its attorneys’ fees because the last

sentence of Section 27 mandates an award of reasonable attorneys’ fees to

CenterPlace, even if it is not the prevailing party. In other words, CenterPlace

contends that MCL’s obligation to pay attorneys’ fees to CenterPlace under

Section 27 is not contingent upon CenterPlace’s litigation success. We are not,

however, persuaded that CenterPlace’s proposed interpretation of Section 27 is

correct.

The interpretation of an unambiguous contract is a question of law that we

review de novo. MCI Telecomms. Corp. v. Tex. Utils. Electric Co., 995 S.W.2d

647, 650–51 (Tex. 1999). “Our primary concern in construing a written contract

is to ascertain the objective intent of the parties as expressed in the contract.”

DaimlerChrysler Motors Co. v. Manuel, 362 S.W.3d 160, 178 (Tex. App.—Fort

Worth 2012, no pet.) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983);

City of the Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex.

App.—Fort Worth 2008, pet. dism’d)). “We examine and consider the entire

document in an effort to harmonize and give effect to all provisions of the

27
contract so that none will be rendered meaningless.” Id. (citing Seagull Energy E

& P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Coker, 650

S.W.2d at 393; City of the Colony, 272 S.W.3d at 722); see El Paso Field Servs.,

L.P. v. MasTech N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012). “When the

provisions of a contract appear to conflict, they should be harmonized if possible

to reflect the intentions of the parties.” Ogden v. Dickinson State Bank, 662

S.W.2d 330, 332 (Tex. 1983) (op. on reh’g) (citing Harris v. Rowe, 593 S.W.2d

303, 306 (Tex. 1979)). “Generally, the parties to a contract intend every clause

to have some effect[,] and the Court will not strike down any portion of the

contract unless there is an irreconcilable conflict.” Id. (citing Woods v. Sims, 154

Tex. 59, 64, 273 S.W.2d 617, 620 (1954)).

The first two sentences of Section 27 provide for the mandatory award of

attorneys’ fees to the prevailing party if litigation ensues relating to the lease.

MCL, as stated above, is the prevailing party entitled to recover its costs and

attorneys’ fees under that portion of Section 27. But in arguing that it should also

be awarded its attorneys’ fees, CenterPlace relies on the last sentence of Section

27, which states, “Further, in the event Landlord retains legal counsel to enforce

any of Tenant’s obligations hereunder, Tenant shall reimburse Landlord for all

reasonable legal fees incurred by Landlord.”

CenterPlace, even though it is not a prevailing party, argues that it is

entitled to recover its attorneys’ fees because the last sentence of Section 27

does not require that CenterPlace prevail, only that CenterPlace retain legal

28
counsel to enforce MCL’s lease obligations. But CenterPlace is asking that we

ignore the first two sentences of Section 27 and read the last sentence in

isolation. This we cannot do because we must consider the entire document in

order to give each provision meaning if possible. See DaimlerChrysler Motors

Co., 362 S.W.3d at 178. Giving effect to all parts of Section 27, it seems clear

that the parties intended that CenterPlace would be entitled to reimbursement of

its reasonable legal fees if CenterPlace retained counsel to enforce MCL’s

obligations under the lease agreements so long as litigation did not ensue. But if

litigation ensued, only the prevailing party in the litigation would be entitled to

recover its attorneys’ fees. That the parties intended the last sentence of Section

27 to apply in the absence of litigation and for the first two sentences to apply in

the event of litigation is confirmed by the parties’ use of “[f]urther” as an

introduction to the last sentence and “[i]n the event any litigation ensues” as an

introduction to the first sentence. See generally Gen. Fin. Servs., Inc. v. Practice

Place, Inc., 897 S.W.2d 516, 522 (Tex. App.—Fort Worth 1995, no writ) (“The

language of a contract should be given its plain, ordinary, and commonly

accepted meaning. Courts are required to follow elemental rules of grammar for

a reasonable application of the legal rules of construction.” (citations omitted)).

The use of “[f]urther” as an introduction to the last sentence of Section 27

suggests that the last sentence applies only to a circumstance different than the

first two sentences of Section 27. And the introductory “[i]n the event any

litigation ensues” language in the first sentence of Section 27, particularly

29
compared to the more general language used in the last sentence of Section 27,

suggests that the parties intended for only the first two sentences to apply once

the parties’ dispute led to litigation, and the first two sentences permit only the

prevailing party in the litigation to recover its costs and attorneys’ fees. MCL is

the prevailing party and is thus the only party entitled to recover its costs and

attorneys’ fees. Had CenterPlace prevailed in the litigation, then only

CenterPlace would have been entitled to recover its costs and attorneys’ fees.

Contrary to CenterPlace’s contention, the only reasonable manner in which to

construe Section 27 to give effect to all three sentences is to interpret it to mean

that CenterPlace would have been entitled to recover its attorneys’ fees if the

parties’ dispute had not resulted in litigation but that because “litigation ensue[d]”

from the parties’ dispute, only MCL is permitted to recover its costs and

attorneys’ fees as the prevailing party. We therefore hold that the trial court did

not err by refusing to award CenterPlace its attorneys’ fees under Section 27 of

the lease. Accordingly, we overrule the remainder of CenterPlace’s fourth issue.

30
 VI. Conclusion

Having sustained the first part of CenterPlace’s first issue and part of its

fourth issue, and having overruled the remainder of CenterPlace’s dispositive

issues, we reverse the portions of the trial court’s judgment relating to MCL’s

claim for statutory damages and attorneys’ fees under property code section

93.002. We render judgment that MCL take nothing on its property code section

93.002 claim. We affirm the remainder of the trial court’s judgment.

ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: May 30, 2013

31