TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00374-CV
Donovan Thomas, Appellant
v.
C & M Jones Investments, LP, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
NO. 5729, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
MEMORANDUM OPINION
Donovan Thomas, pro se, appeals a trial-court judgment that awarded damages and
attorney’s fees to C & M Jones Investments, LP, in a suit alleging breach of two commercial leases.1
The substance of Thomas’s contentions is that (1) the evidence conclusively or by the great weight
and preponderance establishes that C & M waived or is estopped from asserting any claim of breach
against Thomas; and (2) the amount of damages awarded—$9,742.04—is not supported by legally
or factually sufficient evidence.2 We will affirm the judgment.
1
The judgment and notice of appeal referred to the plaintiff and appellee as C & M Jones
Investments, LLC, and for this reason the appeal was initially docketed with that name. The
record—including the leases at issue and trial testimony—demonstrates with certainty that this party
is known as C & M Jones Investments, LP, and that the discrepancy is merely an innocuous
misnomer. We have corrected the style of the appeal accordingly.
2
The amount of attorney’s fees awarded was $2,100. Thomas does not challenge this award
apart from his defenses to the liability on which the award is predicated.
The claims were tried to the bench.3 The evidence reflected that the two leases in
question were each for the use of a suite, designated respectively as Unit 3 and Unit 4, in a Lockhart
commercial property known as Pecan Plaza. The leases were executed in 2010 by Pecan Plaza’s
then-owner, appellee C & M, acting through its principal Clifton M. Jones, and Thomas as tenant,
in contemplation that Thomas, a chiropractor, would operate his practice there. The evidence was
somewhat conflicting as to some of the lease terms and the extent to which the parties subsequently
agreed to modify the original written instruments, but generally it can be said that each lease required
Thomas to pay C & M rent around the first of each month. The rent amounts were derived from a
base rent that was adjusted upward to recoup certain fees and expenses paid by C & M, such as
utilities and, in the case of Unit 3, certain costs of improvements that C & M had funded.4 Each
lease also authorized C & M to assess late fees in the amount of 10% of any delinquent or unpaid
balance each month. Exclusive of late fees, the monthly rentals C & M charged to Thomas ranged
from approximately $1,100-1,200 for Unit 3 and $800 for Unit 4.
While we have attempted to construe Thomas’s arguments in terms of the grounds for relief
their substance fairly invokes, we are ultimately bound to apply the same substantive and procedural
standards to him as we do represented parties. See Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184–85 (Tex. 1978). Our navigation of Thomas’s arguments is unaided by C & M’s perspective,
as it opted not to file an appellee’s brief.
3
The suit originated in small-claims court but was appealed to the trial court for de novo
proceedings. Although pro se on appeal, Thomas was represented by counsel below.
4
The lease for Unit 3 provided that Thomas would make improvements to the unit that had
been estimated to cost $6,000, that C & M would fund the improvements up to that amount, and that
any deviation between the improvements’ actual costs and the estimate would be recouped or rebated
(as applicable) through prorated adjustments to each month’s rent of $30 for each $1,000 in cost
difference. Under color of this provision, C & M adjusted each month’s rent for Unit 3 upward by
approximately $130.
2
Although there is some dispute regarding the precise duration of each lease, the
parties concur that Thomas occupied both units and paid rents to C & M beginning in 2010 and
continuing into 2012. But as early as May 2010, C & M complained of delayed or partial payments
from Thomas and assessed late fees, and this would recur with some frequency in the ensuing years.
By December 2011, C & M was sending Thomas notices of default and demanding payment of
amounts alleged to be past due. C & M would do so again in January and March of 2012, with the
amount of the claimed arrearage increasing each time.
Amid these difficulties, C & M, through Jones, negotiated and ultimately completed
the sale of Pecan Plaza to a third party effective in June 2012. In connection with the transaction,
and apparently at the buyer’s insistence, Jones undertook to obtain from Thomas an estoppel
agreement or certificate concerning each lease.5 Jones testified that while he was an experienced
real-estate investor, he had never previously been called upon to provide an “estoppel” in connection
with a transaction. He attempted to comply by using an estoppel agreement or certificate form that
he found on the Internet.
Utilizing this form, in March or April 2012, Jones prepared a draft “estoppel”
concerning each lease for Thomas to sign. Each document recited that in exchange for consideration,
5
Generally speaking, an “estoppel certificate” or “tenant estoppel certificate” refers to a
verification regarding the existence and validity of lease or contract obligations and the
parties’ compliance with them. See, e.g., 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 255
(Tex. App.—Dallas 2002, pet. denied) (“A tenant estoppel certificate verifies the current tenant has
a good lease and that neither it nor the seller is in default.”); see also Black’s Law Dictionary (9th ed.
2009) (defining “estoppel certificate” as a “signed statement by a party (such as a tenant or a
mortgagee) certifying for another’s benefit that certain facts are correct, such as that a lease exists,
that there are no defaults, and that rent is paid to a certain date”).
3
the signatory (identified throughout as “Tenant”) agreed that the respective lease was valid, that the
Tenant was in possession, and that a list of material lease terms within the document was accurate.
This list portion of the document consisted of a series of fill-in-the-blank questions in which the user
was to indicate such terms as “Term of Lease,” “Date of Lease,” “Monthly Rent,” and “Security
Deposit,” and Jones completed these in handwriting. Each form also contained terms whereby the
Tenant would agree that “Landlord” (i.e., C & M) was not in default under the lease and did not have
any outstanding obligations owing to Tenant. Conversely, the form included the following terms
regarding obligations owing from Tenant to Landlord:
4. All rent, charges, or other payments due the Landlord under the Lease have
been paid as of March 31, 2012, and there have been no repayments or rent
or other obligations.
5. The Tenant under the Lease is not in default under any terms of the Lease.
Each form concluded with the agreement that “[t]his certification shall be binding upon, and shall
enure to the benefit of the Landlord and the Tenant, the respective successors and assigns of the
Landlord and the Tenant and all parties claiming through or under such persons or any successor or
assign.” Each form concluded with a blank signature space for Thomas as “TENANT.”
Jones left the two forms at Thomas’s office with a note urging that he complete
them “ASAP” and return them in a self-addressed envelope Jones had provided. Thomas responded
by returning both forms unsigned (although each blank signature block had curiously been dated
May 11, 2012 and notarized) and with handwritten changes reflecting disagreement with several
of the lease terms Jones had handwritten in the blanks. These included the “Monthly Rent” for
4
Unit 3 (while Jones had indicated the amount of $1,281, Thomas claimed that he owed only $1,100),
the date and term of the Unit 4 lease (while Jones had indicated a three-year term starting on April 1,
2010, Thomas asserted that the lease had a renewable one-year term that began on July 1, 2010), and
“Security Deposit” (while Jones had claimed that no security deposit had been made under either
lease, Thomas contended that he had paid $950 under each). Accompanying the returned forms was
a cover letter in which Thomas elaborated on his reasoning in making the changes and took issue
with other rentals and fees that Jones had elsewhere claimed to be owing.
The disputes escalated further thereafter. Subsequent correspondence in evidence
included a June 1, 2012 letter from Jones in which he challenged Thomas’s assertions regarding the
lease term, monthly rentals, and security deposits. Jones also complained that Thomas had paid
his April rent for both units late and had failed to pay the full amounts owing for either unit in
both April and May. Eventually, on July 20, Jones sent Thomas a “Written Notice and Statement
of Claim” demanding payment of $8,505.33 within ten days and threatening suit if not complied
with. The litigation soon followed.
In response to C & M’s claims that he had breached the leases, Thomas had pled the
affirmative defenses of waiver and estoppel. To establish that C & M had waived its rights under
the leases, Thomas had the burden of proving (1) “an existing right, benefit, or advantage held by a
party” (here, C & M); (2) “the party’s actual or constructive knowledge of its existence”; and (3) “the
party’s actual intent to relinquish,” or intentional conduct inconsistent with, the right.6 To establish
6
See Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex. 2008); see also Tenneco Inc.
v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (noting that waiver is an affirmative
defense).
5
the affirmative defense of equitable estoppel, on the other hand, Thomas had the burden of proving:
“(1) a false representation or concealment of material facts; (2) made with knowledge, actual or
constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without
knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the
representations.”7 Because the trial court did not make findings of fact and conclusions of law
elaborating on the basis for its final judgment,8 we imply that it failed to find that Thomas had met
his burden as to any element of either defense.9
As the cornerstone of both defenses at trial, Thomas relied upon the portion of
the unsigned “estoppels” stating that rents had been paid and that the tenant was not in default. In
addition to urging that this language reflected or was reasonably understood to be C & M’s
relinquishment of its claims, Thomas emphasized testimony that Jones had ultimately provided the
“estoppels,” in the form that Thomas had returned them, to the third-party buyer. Thomas attempts
to bring these same basic contentions forward on appeal, asserting in substance that the “estoppel”
language refutes the existence of any evidentiary support for the trial court’s failure to find the
elements of waiver or estoppel. As the party having the burden of proof on the defenses, Thomas
can prevail on appeal only if he can demonstrate that the evidence conclusively establishes (i.e.,
7
Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16
(Tex. 1998) (internal citation omitted).
8
While Thomas did request findings of fact and conclusions of law, he did so untimely and
has otherwise not preserved any claim of entitlement to those findings and conclusions.
9
See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (where no findings of fact
or conclusions of law were requested or filed, “[i]t is therefore implied that the trial court made all
the findings necessary to support its judgment”).
6
that no reasonable person could conclude otherwise) each element of one or both defenses, in which
case he would be entitled to reversal and rendition of a take-nothing judgment in his favor.10
Alternatively, Thomas must demonstrate that the trial court’s failure to find the elements is so
contrary to the great weight and preponderance of the evidence as to be manifestly unjust, in which
case he would be entitled to a reversal and remand for a new trial.11 Under both standards, we defer
to the fact-finder’s determinations of the credibility of the witnesses, the weight to be given the
testimony, and the resolution of evidentiary conflicts.12
Taking full account of the “estoppels,” the evidence falls far short of demonstrating
conclusively or by the great weight and preponderance each element of Thomas’s defenses. Among
other considerations, any notion that the “estoppels” represented C & M’s intentional relinquishment
of its claims to allegedly unpaid rentals and fees is countered by proof of the circumstances under
which the documents had been prepared, evidence that the parties’ conflict regarding allegedly
unpaid rentals and fees had raged both before and after Jones prepared the “estoppels,” and further
testimony by Jones that he had included the language in the expectation or hope (ultimately
unrealized) that Thomas would become current by the time he signed the documents. Similarly,
regarding Thomas’s estoppel defense, proof that Thomas and Jones continued to dispute the amount
10
See, e.g., Allstate Ins. Co. v. Hegar, 484 S.W.3d 611, 615 (Tex. App.—Austin 2016,
pet. filed) (citing City of Keller v. Wilson, 168 S.W.3d 802, 815–17 (Tex. 2005)). “Evidence is
conclusive only if reasonable people could not differ in their conclusions, a matter that depends on
the facts of each case.” City of Keller, 168 S.W.3d at 816 (footnote omitted).
11
See, e.g., Allstate Ins. Co., 484 S.W.3d at 615–16 & n.9 (citing Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001)).
12
See City of Keller, 168 S.W.3d at 819–22.
7
of rentals owed tends to negate both the absence of knowledge by Thomas of the true facts and any
detrimental reliance on his part. While Thomas testified that he had believed he was “being told
officially that [he] didn’t owe anymore money under the lease[s],” the trial court was within its
discretion—especially in light of the evidence here—in implicitly ascribing the claim little credibility
or weight.13 We accordingly reject Thomas’s challenge to the evidence supporting the trial court’s
failure to find the elements of waiver or estoppel.14
This leaves Thomas’s complaint about the amount of damages awarded. The
substantive gist of his complaint is that the trial court’s calculation of $9,742.04 in damages rests
upon two predicates that are each lacking support by legally or factually sufficient evidence. First,
Thomas insists that the award erroneously presumes that he vacated Unit 3 prior to Pecan Park’s
13
See id.
14
In his pro se appellate brief, Thomas frequently couches his arguments in terms of “quasi-
estoppel.” Quasi-estoppel, strictly speaking, is an equitable doctrine that “precludes a party from
accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid
corresponding obligations or effects.” See Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 548
(Tex. App.—Austin 1999, pet. denied). Phrased another way, it precludes a party from asserting,
to another’s detriment, a right inconsistent with a position he has previously taken. Ray v. T.D.,
No. 03-06-00242-CV, 2008 WL 341490, at *8 (Tex. App.—Austin Feb. 7, 2008, no pet.)
(mem. op.). The doctrine applies when it would be unconscionable to allow a person to maintain
a position inconsistent with one in which he accepted a benefit. Id.; Stable Energy, 999 S.W.2d
at 548. Although the substance of Thomas’s arguments would appear primarily to implicate the
waiver or equitable estoppel defenses he pleaded below, he also seems to contend that C & M should
be estopped from claiming rents are owed because it provided those statements to the third-party
buyer and succeeded in closing the transaction. To the extent Thomas seeks to invoke quasi-estoppel
as a defense distinct from equitable estoppel and has preserved that contention, the evidence
abundantly supports the trial court’s failure to find that it is unconscionable to permit C & M to
continue seeking to collect allegedly unpaid rents under the circumstances here. Regardless, the
defense would fail as a matter of law because “quasi-estoppel requires mutuality of parties;
the doctrine may not be asserted by or against a ‘stranger’ to the transaction that gave rise to
the estoppel.” Deutsche Bank Nat’l Tr. Co. v. Stockdick Land Co., 367 S.W.3d 308, 315 n.13
(Tex. App.—Houston [14th Dist.] 2012, pet. denied).
8
sale when in fact he had continued to operate his chiropractic practice there through time of trial.
However, Thomas does not point to anything in the trial record suggesting that the damages award
was based upon or had any relationship to any perception that he had vacated Unit 3. His sole
support for that assertion, rather, is an allegation contained in C & M’s live petition that Thomas
“vacated [Unit 3] and failed to pay the balance on the lease agreement when the property was sold
on or about June 22, 2012.” C & M ultimately did not attempt to prove that fact at trial, nor would
such a fact appear to be material to its damages theories. Thomas fails to demonstrate why or how
this pleading allegation, in itself, translated to some sort of error in the trial court’s damages
calculation.
Second, Thomas maintains that the damages award improperly compensates C & M
for rents that would accrue on Unit 4 past C & M’s sale of the building in June 2012 and into 2013.
His reasoning is as follows:
(1) The damages award corresponds to a calculation that Jones presented at trial
in which Jones determined that (a) Thomas had owed C & M a total of
$55,293.24 under the leases; (b) Thomas had paid C & M a total of
$45,551.20; (c) yielding a shortage in the amount of $9,742.04.
(2) This testimony by Jones concerning the total amount owed was in response
to a question inquiring, “Did you calculate a number or total that was owed
on the property for the whole period of time with late fees and everything?”
(3) According to Thomas, Jones’s calculation of the amounts “owed on the
property for the whole period of time” referred to all of the rents that would
accrue through the end of the lease term.
(4) Because Jones had claimed that the Unit 4 lease had a three-year term that
began in April 2010, Thomas infers that Jones’s calculation of the total
amounts owed “for the whole period of time” must have included rents that
would accrue through March 2013.
9
(5) The calculation thereby compensated C & M for rentals accruing after the
date it sold Pecan Plaza. Thomas further emphasizes that he had sent C & M
notice of his intent to vacate Unit 4 at the end of June 2012, consistent with
his view that the Unit 4 lease provided for renewable one-year terms that
commenced in July 2010.
Thomas’s argument is quickly disposed of by observing that C & M never purported to seek recovery
of rents or fees that had accrued past the date it sold Pecan Plaza. Instead, C & M’s theories at
trial were directed entirely at establishing Thomas’s liability for rents and fees occurring prior to
that time. Counsel’s reference to “the whole period of time” must be read in that context to refer to
the entirety of the lease term preceding Pecan Park’s sale, and that was plainly the thrust of
Jones’s response and his evidence. Thomas has failed to demonstrate any error in the trial court’s
damages calculation.
We affirm the trial court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: July 15, 2016
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