dissenting.
I respectfully dissent.
The majority would deprive the appellees of the attorney’s fees granted by the jury and judgment, because the jury verdict was grounded on a constructive eviction cause of action, which the majority contends can only be considered a tort and not a breach of contract. I disagree.
Appellees’ petition clearly alleges that the constructive eviction “constituted a violation and breach of the two [written] leases.” One lease involved the property known as “Special Moments.” The second *53lease involved property known as “The Finale.” The petition further repeatedly alleged breaches of the written leases and generally prayed for attorney’s fees. Since no special exceptions were leveled against these allegations, they must be construed liberally. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982).
In Issue One, the jury found that Hud-dleston and/or Huddleston Development, Inc., individually or through their agent, servants, or employees, negligently caused damaged to Pace Inc.
In Issue Two, the jury found that Hud-dleston and Huddleston Development, Inc., did not fail to comply with the terms of the leases.
However, in Issue Four, the jury found that Huddleston and/or Huddleston Development, Inc., individually or through their agents, servants or employees, caused a constructive eviction of Pace and Pace, Inc., as to the leased property “Special Moments” only. The defining instruction to Issue Four, which was not objected to, defined constructive eviction as requiring findings of:
1) an intention on the part of the landlord that the tenant shall no longer enjoy the premises, which intention can be inferred from the circumstances proven; 2) a material act by the landlord or those acting for him that substantially interferes with the use and enjoyment of the premises for the purpose for which they are let; 3) the act must permanently deprive the tenant of the use and enjoyment of the premises; and 4) the tenant must abandon the premises within a reasonable time after the commission of the act.
It is immediately apparent that in order to make the first and second findings required for a constructive eviction, it is necessary that a lease (contract) exist creating a landlord and tenant relationship, that the landlord intend to deprive the tenant of the enjoyment of the premises (an intent to breach the contract), and that a material act by the landlord, or those acting for him, substantially interfere with the use and enjoyment of the premises for the purpose for which they are let (actual breach of the contract). The remaining third and fourth findings require the added aggravating features that the breach permanently deprived the tenant of the enjoyment of the premises to such an extent that it caused the tenant to abandon the premises. Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 526 (Tex.App.—El Paso 1983, writ ref’d n.r.e.). Thus, a constructive eviction is in fact simply an aggravated breach of contract.
A careful scrutiny of the jury verdict reveals that Issues One and Four inquire whether the appellants or their agent and servants negligently caused damages or caused a constructive eviction of Pace and Pace, Inc., while Issue Two inquires whether the appellants alone (not including any agent or servants) failed to comply with the terms of the leases. Since the evidence indicated that it was the actions of the appellant’s agents and servants, acting for the appellants, that actually caused the damage and constructive eviction, there is no inconsistency in the manner the jury answered Issues One, Two and Four.
The majority relies on Charalambous v. Lafitte Corp., 652 S.W.2d 521, but the Charalambous opinion can in fact be read to support an opposite view. Charalam-bous involved a plaintiff who leased the bottom floor of a hotel and established a restaurant and nightclub. After disagreements about alleged disturbances caused by the band performing in the nightclub, an agent of the landlord temporarily cut off the restaurant’s electricity and gas, causing damages to the plaintiff. Later, the locks to the restaurant were changed, wrongfully evicting the plaintiff. Further, the landlord stopped payment on a check which was in payment for food provided by the plaintiffs to a ship crew which were guests of the landlord’s hotel. As in the case before us, plaintiff sued, alleging an intermingling of breach of contract and wrongful eviction causes of action. The jury found that:
(1) the defendants withheld money that was owed to the plaintiffs for providing food to the ship’s crew, (2) the additional *54necessary sum of money which would reasonably compensate for providing food to the ship’s crew was $2,022.83, (3) the defendants’ acts in temporarily cutting off the electricity and gas service on January 10 resulted in a monetary loss to the plaintiffs, (4) for that loss the plaintiffs would be entitled to the sum of $500.00, (5) failed to find that the plaintiffs allowed the playing of musical instruments on their premises in such a manner or with such volume as to reasonably annoy or disturb the guests at the Jean Lafitte Hotel, (6) failed to find that the defendants gave the plaintiffs written notice that the maintaining of a live band on their premises was in violation of the lease, (8) found that the following sums would reasonably compensate the plaintiffs for the following: (a) $500.00 for the expense of removing their business to other premises; (b) $5,200.00 for depreciation in the value of their property as a result of moving; (c) $36,500.00 for their loss of profits; (d) $800.00 for their loss of prepaid rent; (9) found from a preponderance of the evidence that any one of the following acts were done by the defendants with conscious indifference to the rights of the plaintiffs: (a) failure to pay any monies due the plaintiffs for the meals furnished to the ship’s crew; (b) shutting off the power to the plaintiffs’ restaurant and club on January 10; (c) in changing the locks and effectively preventing the plaintiffs from carrying on their business after January 21, 1976; (10) that $100,-000.00 should be awarded to the plaintiffs as exemplary damages.
Charalambous at 523-24.
The issues pertinent to this case, which were before the court in Charalambous, were whether exemplary damages were appropriate, since the action involved a breach of contract, and whether the trial court erred in refusing to submit an issue on attorney’s fees.
The court in Charalambous recognized, as does this dissent, “the ever confusing intermingling of concepts of contract law and property law in the landlord tenant relationship”; recognized the identical requirements for a constructive eviction that were included in the charge here relative to Issue Four, and; concluded that a tenant who has been “wrongfully evicted by his landlord ... is not confined to an action for forceful entry and detainer to regain possession or to an action for breach of covenant ... [but] may sue in tort by resorting to the ordinary action of trespass where the eviction was forcible. 52 C.J.S. Landlords and Tenants, Sec. 460(1), p. 319. See also: Sec. 461(5).” Charalambous at 526 (emphasis added). The court then held that the jury findings as to Issue Nine (set out above) “became the foundation for the award of exemplary damages ...” and upheld the exemplary damages. Id. at 526-27.
As in the case before us, the court in Charalambous was also presented with the issue of attorney’s fees. The direct question before the court was whether the trial court erred in refusing to submit an issue on attorney’s fees. As in the case before us, the jury findings set out in the opinion, and the language of the court in Charalambous, clearly indicate that the jury verdict was one for constructive eviction. However, instead of simply denying the right to attorney’s fees because the successful cause of action was a tort (constructive eviction) rather than a breach of contract, as the majority here holds, the court in Charalambous obviously recognized the right to attorney’s fees and justified the trial court’s denial of an attorney’s fee issue by stating:
The plaintiffs’ only claim to attorney’s fees as stated in their original petition was made under Article 5236a and 5236d, Tex.Rev.Civ.Stat.Ann., and such statutes apply only to residential leases and have no application to commercial leases. (Citations omitted). The plaintiffs failed to plead for attorney’s fees under Article 2226, Tex.Rev.Civ.Stat.Ann., and in addition failed to plead or prove formal demand for payment of a claim under the latter statute. The third point is overruled.
Charalambous at 527.
The petition in the case before us generally prayed for attorney’s fees without re*55strictions. The court submitted an attorney’s fee issue, and granted judgment based on the jury answers which were favorable to the appellees. Since no exceptions were made to these pleadings, they must be liberally construed. Roark v. Allen, 633 S.W.2d at 809. Further, there is no contention or indication that the appel-lees here failed to prove their entitlement to attorney’s fees before the court below for failure of a formal demand.
It is untenable to hold that a tenant is entitled to attorney’s fees where a landlord has simply breached a lease, but also to hold that a tenant forfeits his right to recover attorney’s fees when the landlord breaches his lease to such an aggravated degree as to amount to constructive eviction. This inequity is aggravated by also saddling the tenant with the added responsibility of proving conscious indifference in order to recover exemplary damages. A breach of contract is a breach of contract, with or without aggravation. An aggrieved tenant should not be made to suffer the loss of attorney’s fees simply because he has been wronged too much.
I would not deny the appellees their attorney’s fees.