Summary
observing that the determination of what willing buyer would pay willing seller presupposes existing, established market
Summary of this case from Infante v. StateOpinion
No. 01-10-00107-CV
Opinion issued April 14, 2011.
On Appeal from 113th District Court Harris County, Texas, Trial Court Cause No. 2009-39665.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
Appellant, Shabraham Yazdani-Beioky ("Yazdani"), appeals a judgment in favor of appellee, Tremont Tower Condominium Association, Inc. (the "Association") on its claim for breach of contract. In three issues, Yazdani contends that he is not liable in tort, he did not breach the contract, and the evidence was factually insufficient to support the trial court's award of damages. We conclude that the issue of tortious liability has not been raised, that the trial court properly found that Yazdani breached the contract, and that the evidence was factually sufficient to support the trial court's award of damages. We affirm.
Background
In 2009, Yazdani owned four condominium units located in Tremont Tower. The Declaration of Condominium for Tremont Tower (the "Declaration") governed the relationship between Yazdani and the Association. In relevant part, the Declaration provides:
[E]ach Owner shall . . . pay for damage to the Condominium caused by the negligence or willful misconduct of . . . an occupant of the Owner's Unit, or the . . . occupant's . . . guests . . . and for costs incurred by the Association to obtain compliance, including attorneys' fees. . . .
The Declaration further provides:
The owner of the unit shall be jointly and severally liable with the lessee of his unit . . . for any damages to the Condominium including, without limitation, the common Elements or Building, caused by such lessee. Provided, however, that an Owner shall not be liable for, or responsible for any criminal acts of such lessee.
In January, George Eric Jauregui signed a 1-year lease agreement with Yazdani to rent one of his condominium units. The agreement lists Jauregui as the sole tenant and occupant; it also provides that Jauregui may not permit any guest to stay longer than 30 days without Yazdani's permission. In the agreement, Jauregui designated Frederick Estey as the person whom, in the event of Jauregui's death, would have been permitted in Yazdani's presence to access the condominium unit for the purpose of removing Jauregui's personal property.
In February, Jauregui and Estey both moved into the condominium unit. The Association's on-site manager issued Jauregui a key fob enabling access to Tremont Tower's common areas. At the same time, Jauregui purchased an additional key fob, which the manager programmed specifically for Estey. For the next few months, Estey lived in the condominium unit; the manager and a neighbor who lived across the street often saw Estey coming and going.
One night in mid-May, the neighbor, hearing some commotion across the street, stepped outside and saw Estey yelling and screaming. Some unidentified persons expelled Estey from Tremont Tower. At the time, Jauregui was not inside the building. Estey, who did not have his key fob, pulled on the door, attempting to reenter. He then kicked the front glass door, dislodging, but not breaking, the glass. Estey waited for another person to enter through the door whom he followed inside before the door re-locked itself. Estey approached the elevator but was unable to proceed farther. For the next three or four minutes, Estey picked up and threw furniture in the lobby. During Estey's rampage, a credenza became scratched, and its brace broke. A large vase and a glass lamp broke. The glass of an end table shattered, and its legs broke off. The fabric of one of two matching chairs was cut with glass. The wires supporting the chandelier were broken, and the elevator became scratched and dented.
Estey exited the lobby and approached the parking lot. Estey kicked the metal gate to the parking lot, dislodging it from its track. Once inside, Estey picked up and threw trashcans, triggered some car alarms, and caused damage to a car. Estey was hiding when the police arrived. The neighbor and others saw Estey fleeing the scene, and they alerted the police, who chased down and apprehended Estey. Estey was later charged with criminal mischief for intentionally and knowingly causing the property damage.
In June, the trial court granted a temporary restraining order against Yazdani, Jauregui, and Estey, prohibiting Estey from being at Tremont Tower. Two days later, the building manager called Yazdani to inform him that Estey was still living with Jauregui in Yazdani's condominium unit. Yazdani said that he would ensure Estey moved out.
The Association sued Estey for trespass and property damage. It also sued Jauregui for property damage. It sued Yazdani for breach of contract, contending that he had breached his contractual obligation to pay for damages done by Estey, who the Association asserted was a guest of Jauregui, the occupant of Yazdani's unit. The Association also requested attorney's fees, which it asserted it was owed pursuant to the Declaration.
Neither Estey nor Jauregui answered or appeared at trial. Accordingly, the trial court entered a default judgment against them. After a bench trial on the merits of the claim against Yazdani, the trial court rendered judgment for the Association, awarding $3,380.59 in damages, $45.65 in prejudgment interest, and $10,120.50 in attorney's fees. The court ordered that Estey, Jauregui, and Yazdani were jointly and severally liable for each amount.
Yazdani timely filed a motion for new trial, which was overruled by operation of law. Yazdani also timely filed a request for findings of fact and conclusions of law. The trial court did not enter findings of fact or conclusions of law, but Yazdani failed to file a notice of past-due findings of fact and conclusions of law before appealing to this Court.
Tortious Liability
In his first issue, Yazdani contends that under Texas tort law, he as a property owner is not liable for the intentional criminal acts of Estey, who Yazdani claims is a trespasser. Nevertheless, as Yazdani correctly observes, the Association asserted no cause of action against Yazdani other than breach of contract. There being no cause of action arising in tort for us to review, we do not reach the merits of Yazdani's first issue.
The Declaration
In his second issue, Yazdani contends that as a condominium unit owner, he is not contractually liable, under the Declaration, to the Association for criminal acts of a trespasser. The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 247 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Challenging only the third element, Yazdani asserts that the Association failed to prove that he breached any specific term of the Declaration. He contends that there is no specific term in the Declaration referencing a condominium unit owner's liability for the criminal acts of a trespasser. Yazdani essentially argues that he can be liable for breach of contract only if there is a contract term specifically referencing an owner's liability for the damage caused by criminal acts of trespassers.
Yazdani provides no argument supporting such a specificity requirement, either in general or in the residential-housing situation in particular. Yazdani's only citation to legal authority is Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 354 (Tex. App.-San Antonio 1998, pet. denied). Yazdani cites Southwell to support the proposition that a plaintiff must prove that the defendant breached a specific material term of the contract. However, Southwell is inapplicable: it concerns the term of an implied contract. See id. at 356; see also Universal Health Servs., Inc. v. Renaissance Women's Group, P.A., 121 S.W.3d 742, 748 (Tex. 2003) (Contracting party can be liable for breach of implied term if supported by "the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself [such that implied term] . . . appear[s] . . . so clearly within the contemplation of the parties that they deemed it unnecessary to express it.").
In contrast, this case does not involve Yazdani's breach of an implied term; it involves his breach of an express term. The Declaration specifically provides that "each Owner shall . . . pay for damage to the Condominium caused by the negligence or willful misconduct of . . . an occupant of the Owner's Unit, or the . . . occupant's . . . guests. . . ." Under this express term, Yazdani agreed to pay for the damages caused by Jauregui's guests. The evidence shows that both before and after the May 19 incident, Estey was a guest living with Jauregui in Yazdani's condominium unit. At trial, Kirarash Keyhani, Yazdani's property manager for the condominium units he owns at the Tremont Tower, testified that there was no doubt in his mind that Estey was either a guest or occupant.
Nevertheless, Yazdani contends on appeal that for the few hours during the incident Estey ceased to be either an occupant or guest. Yazdani contends that Estey could not have been Jauregui's guest during the incident because Jauregui was not present at Tremont Tower that night and because Estey caused the damages after he had been denied access to Tremont Tower. Yazdani points out that the Association also sued Estey, contending that he was a trespasser during the attack.
Nevertheless, other evidence supports the trial court's finding that Estey remained a guest. There is no evidence that Jauregui ever forbade Estey from staying in the condominium unit; to the contrary, the manager testified that after the incident, Jauregui continued to permit Estey to live in the unit. When the Association's manager asked Jauregui if Estey still lived in the condominium unit, Jauregui replied that he was not going to make Estey leave. The record is silent as to who excluded Jauregui from Tremont Tower just prior to the incident and as to why he did not have in his possession the key fob that had been issued for him by the manager.
Yazdani further observes that the only Declaration term specifically referencing criminal conduct provides that "an Owner shall not be liable for, or responsible for any criminal acts of [his] lessee." Yazdani contends that in light of the express provision that an owner is not liable for the criminal acts of his lessee, the Declaration does not impose liability for the criminal acts of trespassers or other third parties. However, the provision Yazdani cites is inapplicable. Specifically, that provision is an exception to a separate obligation of owners. In relevant part, the provision states:
The owner of the unit shall be jointly and severally liable with the lessee of his unit . . . for any damages to the Condominium including, without limitation, the common Elements or Building, caused by such lessee. Provided, however, that an Owner shall not be liable for, or responsible for any criminal acts of such lessee.
In context, the exception for damages caused by criminal acts applies only to criminal acts of a lessee, not those caused by an occupant or an occupant's guest. Yazdani is not being held liable for the damages caused by his lessee, Jauregui; rather, Yazdani is being held liable for damages caused by Estey, who was either an occupant or an occupant's guest. We conclude that the trial court did not err by finding that Estey was either an occupant or a guest and that Yazdani breached the Declaration's term making him liable for damages caused by an occupant or a guest.
We overrule Yazdani's second issue.
Sufficiency of the Evidence
In his third issue, Yazdani contends that the evidence is factually insufficient to support the award of damages to the condominium association.
A. Standard of Review
In an appeal from a bench trial, an appellate court reviews de novo a trial court's conclusions of law and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Hailey v. Hailey, 176 S.W.3d 374, 383 (Tex. App.-Houston [1st Dist.] 2010, no pet.). In the absence of findings of fact or conclusions of law, an appellate court must presume that the trial court made all the findings necessary to support its judgment. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.-Fort Worth 2004, no pet.) (citing Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996)). When the appellate record includes the reporter's record, the trial court's factual findings, whether express or implied, are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them. See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.-Houston [14th Dist.] 1985), writ refused n.r.e., 699 S.W.2d 199 (Tex. 1985); Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.-San Antonio 1995, writ denied).
To determine whether the evidence was factually sufficient to support a finding, an appellate court considers and weighs all evidence that was before the trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Raymond v. Raymond, 190 S.W.3d 77, 80 (Tex. App.-Houston [1st Dist.] 2005, no pet.). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. An appellate court must not merely substitute its judgment for that of the factfinder. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A factfinder has broad discretion in assessing damages. Henry v. Masson, No. 01-07-00522-CV, 2010 WL 5395640, at *11 (Tex. App.-Houston [1st Dist.] Dec. 30, 2010, no pet.).
B. Analysis
Under express terms of the Declaration, Yazdani is contractually liable to "pay for damage to the Condominium[.]" Although the damages arise in contract, the parties agree that the proper measure of damages under the Declaration is the measure of damages applicable in tort law.
Generally, the measure of damages to personal property is "the difference in its market value immediately before and immediately after the injury, at the place where the damage occurred." Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex. 1995). Market value is defined as the amount that a willing buyer who desires to buy but is under no obligation to buy, would pay to a willing seller who desires to sell but is under no obligation to sell. City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex. 1972). This definition presupposed an existing, established market. Wendlandt v. Wendlandt, 596 S.W.2d 323, 325 (Tex. Civ. App.-Houston [1st Dist.] 1980, no writ). However, not all property has a "market value." Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). For example, the Texas Supreme Court has recognized, as a matter of common knowledge, "that used household goods, clothing and personal effects have no market value in the ordinary meaning of that term." Crisp v. Sec. Nat'l Ins. Co., 369 S.W.2d 326, 328 (Tex. 1963).
Generally, "[w]hen market value does not exist, replacement value is the means of assessing damages." Gulf States Utils., 79 S.W.3d at 569. However, "[i]n some situations, replacement value does not properly measure damages because it may represent an economic gain to the plaintiff." Id. Under this second measure of damages, a plaintiff would receive an economic gain if, for example, he were awarded the replacement cost for used household goods, clothing, or personal effects. Crisp, 369 S.W.2d at 328.
When the replacement cost would represent an economic gain to a plaintiff whose property has been destroyed, the measure of damages is "the actual worth or value of the articles to the owner for use in the condition in which they were at the time of the [incident] excluding any fanciful or sentimental considerations." Id. Nevertheless, in determining actual value, a factfinder "may consider original cost and cost of replacement, the opinions upon value given by qualified witnesses, the gainful uses to which the property has been put as well as any other facts reasonably tending to shed light upon the subject." Id. at 329. In determining damages, the factfinder has discretion to award damages within the range of evidence presented at trial. Gulf States Utils., 79 S.W.3d at 566.
"Generally, a property owner is qualified to testify to the value of her property even if she is not an expert and would not be qualified to testify to the value of other property." Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., No. 09-0396, 2011 WL 836860, at *5 (Tex. Mar. 11, 2011); Gulf States Utils., 79 S.W.3d at 566. An entity's agent may testify to the value of the entity's property if the agent's position within and duties to the entity warrant applying a presumption that they are familiar with the entity's property and its value. Reid Rd., 2011 WL 836860, at *6, 8.
The trial court awarded $3,380.59 in damages. Of this, $1,070.11 represents amounts the Association spent repairing the chandelier, the front glass door, the garage gate, and the elevator, and $511.48 represents the amount spent to obtain a video surveillance tape of the incident. When the property is not totally destroyed, a plaintiff may elect to recover the reasonable cost of repairing the property. Pasadena State Bank v. Isaac, 149 Tex. 47, 51, 228 S.W.2d 127, 129 (Tex. 1950). On appeal, Yazdani challenges only the remaining $1,799.28, which represents the damage to property that was not successfully repaired.
The Association's manager testified that following the incident, she "went shopping and looked at items similar to" the remaining items. The remaining items had the following replacement costs at essentially the time of loss:
Property Replacement Cost TOTAL $2,200
Credenza $800 Chair $600 End Table $250 Lamp $150 Vase $400 The manager testified that she had no knowledge of the items' original costs and that she was not working for the Association when the items were purchased. She testified that the credenza, chair, and end table were purchased in 2004, but she did not mention when the lamp or vase was purchased.In announcing its judgment, the trial court explained that it was discounting the replacement costs of the items. The trial court explained that it was, however, awarding the Association the full value for the vase because "vases don't depreciate." Excluding the vase, the items had a total replacement cost of $1,800, for which the court awarded $1,399.28, reflecting a discount of $400.72 or 22.26%.
Yazdani contends that the evidence is factually insufficient because there was no testimony of the actual value of the items at the time of the incident. Yazdani also contends that replacement cost is irrelevant to the determination of actual value. We disagree. As Yazdani observes, the parties agree that the proper measure of damages is actual value at the time of the incident. The Texas Supreme Court has held that a factfinder may consider replacement cost to determine actual value. See Crisp, 369 S.W.2d at 329; cf. Ayala v. Valderas, No. 01-07-00134-CV, 2008 WL 4661846, at *6 (Tex. App.-Fort Worth Oct. 28, 2008, no writ) (mem. op.) (replacement cost is factually insufficient to support damage award based on market value); Hawkins v. Owens, No. 01-99-00918-CV, 2000 WL 1199254, at *4 (Tex. App.-Houston [1st Dist.] Aug. 24, 2000, pet. denied) (not designated for publication) (same). The manager's testimony regarding the replacement costs for similar items determined shortly after the incident is some evidence of the actual value of the items to the Association. See Crisp, 369 S.W.2d at 329.
Yazdani also contends that the evidence is factually insufficient because there was no evidence of the amounts of depreciation or the proposition that the vase did not depreciate. As noted above, and contrary to Yazdani's suggestions, replacement cost is meaningful evidence of actual value, and the evidence established a total replacement cost of $2,200. See Crisp, 369 S.W.2d at 328. The trial court as factfinder was within its discretion to award damages within that range. See Gulf States Utils., 79 S.W.3d at 566. We further note that the discounting actually worked in Yazdani's favor by reducing the amount of damages.
Yazdani complains that the manager was not the owner of the property. Although the Association was the owner of the property, the manager as the Association's agent could testify to the value of the property. See Reid Rd., 2011 WL 836860, at *6, 8. On appeal, appellant complains for the first time that there was no evidence offered that she had the credentials, experience, or expertise to offer testimony on the loss in value of the items. However, an owner or an owner's agent need not be an expert to testify as to the value of the owner's property. Id.; Gulf States Utils., 79 S.W.3d at 566. The manager's position and duties show that she was familiar with the Association's property and its value. See Reid Rd., 2011 WL 836860, at *6, 8; Gulf States Utils., 79 S.W.3d at 566. We conclude that the evidence is factually sufficient to support the trial court's award of damages.
We overrule Yazdani's third issue.
Conclusion
We affirm.