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Affirmed as Modified and Opinion filed December = 21, 2006.=20

 

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-00918-CV

____________

 

MARY HELEN=20 AND GILFRED CHARETTE, = Appellants

 

V.

 

KASSIE AND=20 JOHN BLAKE FITZGERALD, = Appellees

 

 

On Appeal from the = 334th District Court

Harris County, = Texas

Trial Court Cause = No. 04-41122

 

 

O P I N I=20 O N

This=20 appeal arises from a residential landlord-tenant dispute.  = The=20 tenants brought suit against their landlords for wrongful = eviction,=20 unauthorized seizure of personal property, wrongful lockout, and = breach of=20 contract.  The landlords counterclaimed alleging the tenants = had=20 abandoned the rental property and breached the lease = agreement.  The=20 trial court found that the tenants did not breach the lease = agreement and=20 that the landlords wrongfully evicted the tenants in violation of = section=20 92.0081 of the Texas Property Code.  The trial court awarded = the=20 tenants statutory penalties and attorney=3Ds=20 fees.  The landlords appeal contending that (1) the trial = court erred=20 in finding the Texas Property Code violation because the tenants = abandoned=20 the property and breached the lease agreement; and (2) the = evidence is=20 legally and factually insufficient to support the = attorney=3Ds fees=20 award.  Finding merit only in the latter argument, we modify = the=20 judgment to omit the award of attorney=3Ds fees,=20 and affirm the judgment as modified.

I. =20 Factual and Procedural=20 Background

On July 8,=20 2003, appellants/landlords Mary Helen and Gilfred Charette entered = into a=20 residential lease agreement (the ALease@) with=20 appellees/tenants Kassie and John Blake Fitzgerald for the rental = of a=20 house located at 4036 Amherst, Houston, Harris County, Texas = (hereinafter=20 the ARental=20 Property@).=20  The lease term began on July 31, 2003 and ran through = July=20 30, 2004.  Under the Lease, the Fitzgeralds paid both a = security=20 deposit of $1,975.00 and a pet deposit of $1,000, $500.00 of which = was=20 non-refundable.  In addition, during the term of the Lease, = the=20 Fitzgeralds timely paid rent of $1,850.00 per month for every = month of the=20 lease term.

In=20 midBMay 2004,=20 the Fitzgeralds gave written notice of their intent to terminate = the=20 tenancy at the end of the lease term, as provided in the = Lease.  This=20 notice was given and received more than sixty days before the = termination=20 date.  Shortly after the Fitzgeralds gave the notice, the=20 Charettes=3D = adult=20 daughter, Robbie Gail Charette, who assisted her parents in = managing the=20 Rental Property, sent an e-mail to the Fitzgeralds acknowledging = the=20 timely notice of termination.  In this May 25, 2004 e-mail, = Robbie=20 Charette urged the Fitzgeralds to reconsider.  The = Fitzgeralds,=20 however, did not change their minds and, on June 14, 2004, they = gave=20 written notice to the Charettes of their forwarding address.  = The=20 Charettes immediately began seeking new tenants for the Rental = Property.=20

On or=20 about June 23, 2004, the Fitzgeralds began to move their = belongings from=20 the Rental Property to their new residence.  On June 24, = 2004, the=20 Fitzgeralds timely paid their last month=3Ds rent to=20 the Charettes to cover the amount owing through the end of the = lease term=20 (July 30, 2004). 

Even=20 though the Fitzgeralds had paid rent through the end of the lease = term,=20 and even though they still had many of their belongings at the = Rental=20 Property, the Charettes requested permission to paint and clean = the Rental=20 Property to make it more presentable for showing to prospective=20 tenants.  To accommodate the Charettes in their plans, on = June 29,=20 2004, the Fitzgeralds agreed to move the remainder of their = personal=20 property to the sun room, though, under the Lease, they had no = obligation=20 to do so.  In addition, as another accommodation to = the=20 Charettes, the Fitzgeralds agreed to board their pets while they = went on=20 vacation from July 3, 2004 through July 15, 2004, to facilitate = the=20 Charettes=3D = plans to=20 show the Rental Property to prospective tenants.  The = Fitzgeralds had=20 no contractual obligation to make these accommodations and = apparently did=20 so purely out of a benevolent spirit.

Although=20 Robbie Charette spoke to the Fitzgeralds the day before they left = for=20 vacation (July 2, 2004), she wrote a letter to them the next day = (July 3,=20 2004), declaring them in default of the Lease.  In the letter = Robbie=20 Charette, on behalf of the Charettes, demanded that the = Fitzgeralds remove=20 the remainder of their possessions from the premises = immediately. =20 Four days later (on July 7, 2004), while the Fitzgeralds were = still on=20 vacation, Robbie Charette wrote them again demanding that they = immediately=20 vacate the Rental Property, and informing them that the locks = would be=20 changed if the Lease Adefaults@ = were not=20 cured before noon on July 10, 2004.  Without even giving the=20 Fitzgeralds a chance to return from their vacation, Robbie = Charette=20 changed the locks on the doors, effectively seizing the=20 Fitzgeralds=3D = personal=20 possessions. She wrote them another letter, this time demanding=20 approximately $1,685.87 for repairs to the Rental Property.  = At this=20 time, the Fitzgeralds were not only  maintaining possessions = at the=20 Rental Property, but also were current in their rent and the lease = term=20 had not expired.

On July=20 21, 2004, the Charettes filed an AOriginal=20 Petition for Forcible Detainer@ = seeking=20 to oust the Fitzgeralds from the Rental Property.[1] =20 A few weeks later, on August 3, 2004, the Fitzgeralds filed an=20 AOriginal=20 Petition and Application for Temporary Restraining Order and = Temporary=20 Injunction,@ = alleging=20 claims for breach of contract, wrongful eviction, wrongful = lockout,=20 unlawful removal of their personal property, and wrongful refusal = to=20 refund their security deposit.  In addition, the Fitzgeralds = sought=20 return of the personal property the Charettes had seized from the = Rental=20 Property while they were on vacation.  The Charettes filed a=20 counterclaim for breach of contract and sought to recover for = alleged=20 damages to the Rental Property.  The Charettes also sought to = recover=20 amounts they claimed were owing under the Lease, including a = Are-letting=20 charge@ = of=20 $2,500, ostensibly due to the Fitzgeralds=3D = Aabandonment@ = of the=20 Rental Property.  The Charettes eventually returned the = personal=20 property they had seized during the wrongful eviction.

On May 20,=20 2005, the trial court filed extensive findings of fact and = conclusions of=20 law, finding, among other things, that the Fitzgeralds were liable = to the=20 Charettes for $3,180.45, which included (1) $624.90 in damages to = the=20 Rental Property; (2) $55.55 in damages to replace the garage = remote=20 controls; and (3) a Are-letting=20 fee@ = of $2500=20 attributable to the Fitzgeralds=3D = Aabandonment@ = of the=20 Property on June 23, 2004.  The trial court also found that = the=20 Charettes wrongfully retained the Fitzgeralds=3D = security=20 deposit and pet deposit of $2,975, which the trial court = determined=20 resulted in the Fitzgeralds owing $205.45 to the Charettes. =20

The trial=20 court concluded that the Charettes violated section 92.0081 of the = Texas=20 Property Code by wrongfully preventing the Fitzgeralds from = entering the=20 Rental Property. The trial court awarded the Fitzgeralds  = $2,144.55=20 in statutory penalties (after offsetting the $205.45) and $25, = 422.90 in=20 attorney=3Ds=20 fees.  The trial court also awarded the Fitzgeralds $7,500 in = attorney=3Ds fees=20 should the Charettes appeal to the court of appeals, and = another =20 $10,000 should the case be appealed to the Texas Supreme = Court. =20

The=20 Charettes timely filed their notice of appeal.  The = Fitzgeralds filed=20 a notice of cross-appeal, which the Charettes have moved to = dismiss as=20 untimely.

II. =20 Jurisdiction Over=20 cross-appeal

The Fitzgeralds have = attempted=20 to bring a cross-appeal in this case.  The Charettes have = filed a=20 AMotion to Strike=20 Cross-Appellants=3D Brief and to Dismiss = Cross-Appeal@ in which they = contend that the=20 Fitzgeralds failed to timely file their notice of = cross-appeal.  The=20 Charettes filed their notice of appeal on August 19, 2005.  = The=20 Fitzgeralds were required to file any notice of cross-appeal on or = before=20 September 2, 2005.  See Tex. R. App. P. 26.1 = (d). =20 The notice of cross-appeal was not filed until October 6, = 2005. =20 Although the Fitzgeralds contend that they timely filed their = notice of=20 cross-appeal, there is no evidence in the record, other than their = counsel=3Ds affidavit, to show = that this=20 notice was timely filed. 

The Fitzgeralds have not established = that their=20 notice of cross-appeal was timely filed. Because the Fitzgeralds = failed to=20 timely file a notice of cross-appeal, we lack jurisdiction to = entertain=20 their issues as stated in their cross-appellants=3D brief.  Therefore, we grant the=20 Charettes=3D motion to dismiss the = cross-appeal.  See=20 Tex. R. App. P. = 42.3=20 (a).  Having dismissed the Fitzgeralds=3D cross-appeal, we do not reach any of = their=20 cross-issues.

 

III.  Issues and=20 Analysis

 

A.     =20 Did the trial court err in concluding that the landlords violated = section=20 92.0081 of the Texas Property Code by preventing the tenants from = entering=20 the leased property?

 

In their=20 first issue, the Charettes challenge the trial court=3Ds finding=20 that they violated section 92.0081(b) of the Texas Property Code = by=20 changing the locks on the doors of the Rental Property on July 10, = 2004,=20 at a time when rent had been paid.  This part of the statute = provides=20 as follows:

(b) A landlord may = not=20 intentionally prevent a tenant from entering the leased premises = except by=20 judicial process unless the exclusion results from:

(1) bona fide = repairs,=20 construction, or an emergency;

(2) removing the = contents of=20 premises abandoned by a tenant; or

(3) changing the = door locks=20 of a tenant who is delinquent in paying at least part of the=20 rent.

 

Tex.=20 Prop. Code Ann. = ' = 92.0081(b) (Vernon Supp. 2006).  In regard to the=20 Fitzgeralds=3D = claims=20 under section 92.0081, the trial court made the following = conclusions of=20 law:

(10)    The=20 Charettes changed the locks on the doors of the Rental Property on = July=20 10, 2004.

(11)    The=20 Charettes intentionally prevented the Fitzgeralds from entering = the Rental=20 Property on and after July 10, 2004.

(12)    The=20 Fitzgeralds were not delinquent in their rent as of July 10,=20 2004.

(13)    The=20 Fitzgeralds provided the Charettes unlimited access to the Rental = Property=20 to make repairs or perform necessary construction in June and July = of=20 2004.

(14)    The=20 Charettes do not argue that an emergency existed on the Rental = Property in=20 July 2004.

(15)    The=20 Charettes did not remove the Fitzgeralds=3D personal items = from the=20 Rental Property.

(16)    The=20 Charettes locked the Fitzgeralds out of the home at 4036 Amherst = for=20 reasons other than (a) to make bona fide repairs, construction, or = an=20 emergency; (b) to remove the contents of the premises abandoned by = a=20 tenant;  or (c) to change the door locks of a tenant who is=20 delinquent in paying at least a part of the rent.

(17)    The=20 Charettes violated subsection (b) of Texas Property Code, section=20 92.0081(b).

(19)    The=20 Rental Property was not the Fitzgeralds=3D dwelling after = June 23,=20 2004, because they are deemed to have Aabandoned@ the Rental = Property on that=20 date.

(25)    By the=20 plain language of the Lease, the Fitzgeralds are deemed to have = abandoned=20 the Rental Property on June 23, 2004.[2]=20

 

On appeal,=20 a reviewing court will uphold conclusions of law if the trial=20 court=3Ds judgment=20 can be sustained on any legal theory supported by the evidence.=20  Spiller v. Spiller, 901 S.W.2d 553, 556 (Tex.=20 App.CSan=20 Antonio 1995, writ denied).  Conclusions of law will not be = reversed,=20 unless they are erroneous as a matter of law. Johnston v. = McKinney=20 American, Inc., 9 S.W.3d 271, 277 (Tex. App.CHouston=20 [14th Dist.] 1999, pet. denied).  In addition, a trial=20 court=3Ds=20 conclusions of law are reviewed de novo as legal questions.  = Id.=20  Incorrect conclusions of law will not require a = reversal,=20 however, if the controlling finding of facts will support a = correct legal=20 theory. Id.; Stable Energy, L.P. v. Newberry, 999 = S.W.2d=20 538, 547 (Tex. App.CAustin=20 1999, pet. denied).

The=20 Charettes argue they were justified in changing the locks on the = Rental=20 Property and preventing the Fitzgeralds from entering the Rental = Property=20 because the Fitzgeralds had abandoned the Property.  In = support of=20 this argument, the Charettes urge this court to conclude that if a = landlord can lock out a tenant who retains personal property on = the leased=20 premises under section 92.0081(b)(3) for failure to pay rent, then = a=20 landlord should be able to do the same under section 92.0081(b)(2) = in=20 situations in which the tenant, though having fully paid all rent, = has=20 moved into another dwelling, thereby Aabandoning@ = the=20 leased premises.  The Charettes contend that to require a = landlord to=20 remove the personal property after a tenant has Aabandoned@ = the=20 premises is inequitable because the landlord must incur additional = costs=20 in removing the property before preventing a tenant from entering = the=20 premises.  We find no merit in the Charettes=3D = argument.

The=20 Fitzgeralds did not abandon the Rental Property within the meaning = of the=20 Texas Property Code.  The plain meaning of the statute = undermines the=20 Charettes=3D = argument.  When, as in this case, the language of the statute = is=20 unambiguous, we must seek the legislative intent as found in the = plain and=20 common meaning of the words and terms used.  Sorokolit v. = Rhodes,=20 889 S.W.2d 239, 241 (Tex. 1994); Monsanto Co. v. = Cornerstones Mun.=20 Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993).  We may not = by=20 implication enlarge the meaning of any word in the statute beyond = its=20 ordinary meaning.  Sorokolit, 889 S.W.2d at 241.  = We must=20 presume that every word in a statute has been used for a purpose = and that=20 every word excluded was excluded for a purpose.  Sw. Bell = Tel. Co.=20 v. Public Util. Comm'n, 888 S.W.2d 921, 926 (Tex. = App.CAustin=20 1994, writ denied). 

The=20 Charettes locked the Fitzgeralds out of the Rental Property for = reasons=20 other than (a) to make bona fide repairs, construction, or an = emergency;=20 (b) to remove the contents of the premises abandoned by a tenant; = or (c)=20 to change the door locks of a tenant who is delinquent in paying = at least=20 a part of the rent.  See Tex. Prop. Code Ann. = ' = 92.0081(b) (Vernon Supp. 2006).  We cannot expand the = language in=20 section 92.0081(b) to allow a landlord to prevent a tenant from = entering=20 the leased property even though the landlord does not do so to = remove the=20 contents of the tenant=3Ds personal=20 property.  It is undisputed that the Fitzgeralds had personal = property on the leased premises at the time the Charettes changed = the=20 locks.  It is also undisputed that the Charettes changed the = locks=20 Cnot=20 because of some reason in section 92.0081(b)C = but=20 because of their insistence that the Fitzgeralds had Aabandoned@ = the=20 Property in violation of paragraph 24 of the Lease.[3] =20 Thus, we conclude that the trial court did not err in determining = that the=20 Charettes violated section 92.0081(b) of the Texas Property = Code.  We=20 overrule the Charettes=3D = first=20 issue.  

B.     =20 Is the evidence legally and factually sufficient to support the = trial=20 court=3Ds award of=20 attorney=3Ds fees to=20 the tenants?

In their=20 second issue, the Charettes contend that the evidence is legally = and=20 factually insufficient to support the trial court=3Ds award of=20 attorney=3Ds fees to=20 the Fitzgeralds under section 92.0081(h) of the Texas Property = Code. =20 See Tex. Prop. = Code=20 Ann. '92.0081(h)=20 (Vernon Supp. 2006).  Section 92.0081(h) provides that, if a = landlord=20 violates section 92.0081, the tenant Amay . . . recover = from the=20 landlord . . . reasonable attorney=3Ds fees.@  Therefore, = this statute=20 affords the trial court a measure of discretion in deciding = whether to=20 award attorney=3Ds fees.  See = Bocquet v.=20 Herring, 972 S.W.2d 19, 20 (Tex. 1998).  Accordingly, we = review=20 the trial court=3Ds ruling on a request = for=20 expenses under this statute for an abuse of discretion. =  Id.=20 at 20B21.  Generally, = the test=20 for abuse of discretion is whether the trial court acted without = reference=20 to any guiding rules and principles or whether the trial court = acted=20 arbitrarily and unreasonably.  See McDaniel v. = Yarbrough, 898=20 S.W.2d 251, 253 (Tex. 1995).  However, under section=20 92.0081(h), the=20 trial court=3Ds discretion is = limited by the=20 requirement that the attorney=3Ds fees be = reasonable. =20 See = Tex. Prop. Code Ann. = '92.0081(h);=20 Bocquet, 972 S.W.2d at = 20B21.  Therefore, = the trial=20 court abuses its discretion if it awards expenses under this = statute=20 without legally and factually sufficient evidence that the=20 attorney=3Ds fees awarded were=20 reasonable.  See Bocquet, 972 S.W.2d at 20B21; = Bass v.=20 Walker, 99=20 S.W.3d 877, 882B83 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet. denied).

In=20 determining if the evidence is legally sufficient, we must = consider=20 evidence in the light most favorable to the challenged finding and = indulge=20 every reasonable inference that would support it.  See = Bass,=20 99 S.W.3d at 821.  We must credit favorable evidence if a = reasonable factfinder could and disregard contrary evidence unless = a=20 reasonable factfinder could not.  See id. at = 827.  We=20 must determine whether the evidence at trial would enable = reasonable and=20 fair-minded people to find the facts at issue.  See = id. =20 The factfinder is the sole judge of the credibility of the = witnesses and=20 the weight to give their testimony.  See id. at = 819. =20 This court must sustain a no-evidence challenge if the record = shows one of=20 the following: (1) a complete absence of a vital fact, (2) rules = of law or=20 evidence bar the court from giving weight to the only evidence = offered to=20 prove a vital fact, (3) the evidence offered to prove a vital fact = is no=20 more than a scintilla, or (4) the evidence establishes = conclusively the=20 opposite of the vital fact.  See id. at = 810.

When=20 reviewing a challenge to the factual sufficiency of the evidence, = we=20 examine the entire record, considering both the evidence in favor = of, and=20 contrary to, the challenged finding.  Cain v. Bain, = 709 S.W.2d=20 175, 176 (Tex. 1986).  After considering all the evidence, we = set=20 aside the fact finding only if it is so contrary to the = overwhelming=20 weight of the evidence as to be clearly wrong and unjust. =  Pool v.=20 Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  The = trier of=20 fact is the sole judge of the credibility of the witnesses and the = weight=20 to be given to their testimony.  GTE Mobilnet of S. Tex. = v.=20 Pascouet, 61 S.W.3d 599, 615B16 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, pet. denied).  We may not substitute our = own=20 judgment for that of the trier of fact, even if we would reach a = different=20 answer on the evidence.  Maritime Overseas Corp. v. = Ellis, 971=20 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence = necessary to=20 affirm a judgment is far less than that necessary to reverse a=20 judgment.  Pascouet, 61 S.W.3d at 616. =

After=20 reviewing the record, we find no evidence that the = Fitzgeralds=3D = attorney=3Ds fees=20 were reasonable.  The Fitzgeralds do not assert there is any = such=20 evidence in the record; however, they argue that this court should = uphold=20 the attorney=3Ds fees=20 award for two reasons: (1) the record reflects that the parties=20 Aimplicitly=20 stipulated@ = to the=20 reasonableness of the attorney=3Ds fees;=20 and (2) the attorney=3Ds fees=20 award is proper because the trial court can take judicial notice = of the=20 Ausual and=20 customary attorney=3Ds fees. .=20 .without further evidence.@ =20 See Tex. Civ. = Prac. &=20 Rem. Code Ann. ' = 38.004=20 (Vernon Supp. 2005).

An=20 Aimplicit=20 stipulation@ = is an=20 oxymoron.  Stipulations are express, not implied.   = The=20 record reflects no stipulation or agreement made by the parties as = to the=20 reasonableness of the attorney=3Ds=20 fees.  The only reference to attorney=3Ds fees in=20 the entire trial is contained in the following excerpt: =

[Trial=20 = Court]:           = Okay.=20 Are y=3Dall going to = cross-examine=20 each other on attorney=3Ds fees or have you = discussed=20 it?

[Charettes=3D=20 counsel]:        I = don=3Dt think = so.

[Trial=20 = Court]:           = Okay.=20 So maybe we can do that by affidavit, if y=3Dall don=3Dt object? =

[Charettes=3D=20 counsel]:        Be glad = to.

[Trial=20 = Court]:           If = you=20 are not going to cross each other, you canB

[Charettes=3D=20 counsel]:        State what = they=20 are.

[Trial=20 = Court]:           = Okay.=20 Stand up and tell me what they are.

[Fitzgeralds=3D=20 counsel]:       Okay.

[Trial=20 = Court]:           If = we=20 do it that way, tell me what your fee request is.

. . = .    =20

[Fitzgeralds=3D=20 counsel]:       Your Honor, my fee = request=20 for fees and expenses incurred in this matter, which includes = numerous=20 deposition notices, certificates of non-appearance, appearing at = the=20 eviction hearing, a TRO and injunction is $25,422.90.

[Trial=20 = Court]:           = Okay.=20 Anything else in your request?

[Fitzgeralds=3D=20 counsel]:       Also, for=20 attorney=3Ds fees on appeal, = that would=20 be through trial, attorney=3Ds fees on appeal = would be=20 $7,500. For appeal to the Court of Appeals, 5,000, and for = application for=20 writ of error to the Supreme Court, 5,000, if the writ  of = error is=20 granted.

And, I guess I do = have a have=20 couple other exhibits which have been admitted already, but which = have not=20 been discussed, and those being Plaintiff=3Ds Exhibits 15, 16, = and 17,=20 which are my demands to Robbie Charette for a key, and notice to = her of=20 the bond which was posted, and demand for return of the property = after=20 bond was posted.

[Trial=20 = Court]:          =20 Okay.  Just make sure Ms. Leediker has those.

[Fitzgeralds=3D=20 counsel]:       I believe the court = reporter=20 does have them.

[Charettes=3D=20 counsel]:        = Yes.

[Trial=20 = Court]:          =20 Anything else?

[Fitzgeralds=3D=20 counsel]:       No, Your = Honor. =20 Plaintiff rests.

[Trial=20 = Court]:           = Okay.=20 And do you have time to do a witness?

[Charettes=3D=20 counsel]:        I can at least = do my=20 attorney=3Ds fees, if = that=3Ds okay.

[Trial=20 = Court]:          =20 Sure.

. . .

[Charettes=3D=20 counsel]:        The request of = attorney=3Ds fees for = Defendant is=20 $11,715.27.  That includes both fees as well as deposition = transcript=20 costs and other expenses.

[Trial=20 = Court]:          =20 Okay.

[Charettes=3D=20 counsel]:        With regards = to=20 attorney=3Ds fees to the Court = of=20 Appeals and/or to the Supreme Court, I would ask those fees be the = same as=20 requested by Plaintiff.

[Trial=20 = Court]:           = Okay.=20 All right . . .

The=20 Fitzgeralds contend that the foregoing exchange demonstrates that = there=20 was a stipulation of sorts between the trial court and both=20 parties=3D = counsel=20 that the attorney=3Ds fees=20 requested were reasonable because the Charettes did not object to = the=20 Fitzgeralds=3D = request=20 for attorney=3Ds=20 fees.  The Charettes did not implicitly agree that the=20 Fitzgeralds=3D = claimed=20 attorney=3Ds fees=20 were reasonable.  Because the parties did not make a = stipulation on=20 the record as to the reasonableness of the attorney=3Ds fees,=20 the reasonableness of the fees must be supported by record = evidence, which=20 brings us to the Fitzgeralds=3D = next=20 argument for upholding their award of attorney=3Ds fees.=20

The=20 Fitzgeralds contend that no such evidence was necessary because, = under=20 sections 38.003 and 38.004 of the Texas Civil Practices and = Remedies Code,=20 the trial court took judicial notice of the usual and customary=20 attorney=3Ds fees in=20 this case.[4]  =20 Under section 38.004, a trial court, without receiving evidence, = can take=20 judicial notice of (1) the usual and customary = attorney=3Ds fees,=20 and (2) the content of the file.  See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 38.004=20 (Vernon Supp. 2005).  Under section 38.003, the usual and = customary=20 fees are presumed reasonable.  See id. ' = 38.003.=20 However, for section 38.003 to apply, the claim must be a claim = asserted=20 under section 38.001.  See id. ' = 38.003.  Section 38.001 sets forth the following claims for = which a=20 party may recover reasonable attorney=3Ds fees:=20 (1) rendered services; (2) performed labor; (3) furnished = material; (4)=20 freight or express overcharges; (5) lost or damaged freight or = express;=20 (6) killed or injured stock; (7) a sworn account; or (8) an oral = or=20 written contract.  Tex. Civ.=20 Prac. & Rem.Code Ann. ' = 38.001=20 (Vernon 1997).  This provision has no application in this = case=20 because the trial court awarded no relief on any of the foregoing=20 grounds.

Section=20 38.004 does not allow courts to take judicial notice of = reasonableness;=20 rather, it allows a court to take judicial notice of Athe usual=20 and customary attorney=3Ds=20 fee@ = in a=20 bench trial.  See Tex.=20 Civ. Prac. & Rem. Code Ann. ' = 38.004.  Because section 38.003 is limited to claims = described in=20 section 38.001,and because section 38.004 does not speak to = judicial=20 notice of reasonableness, this court has held that trial courts = may not=20 use section 38.004 to take judicial notice of the reasonableness = of=20 attorney=3Ds fees=20 awarded under a statute other than section 38.001.  London = v.=20 London, 94 S.W.3d 139, 147B49 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.).  Though there is currently a = split on=20 this issue among the courts of appeals, this court, of course, = follows its=20 own precedent.  Compare London, 94 S.W.3d at = 147B48 =20 (rejecting argument that trial court could take judicial notice of = reasonable attorney=3Ds fees=20 recovered outside of section 38.001), In re T.L.K., 90 = S.W.3d 833,=20 841 (Tex. App.CSan=20 Antonio 2002, no pet.) (same), Valdez v. Valdez, 930 S.W.2d = 725,=20 732B33 (Tex.=20 App.CHouston=20 [1st Dist.] 1996, no writ) (same), Hasty, Inc. v. Inwood = Buckhorn Jt.V., 908 S.W.2d 494, 503 (Tex. App.CDallas=20 1995, writ denied) (same), Richards v. Mena, 907 S.W.2d = 566,=20 573B74 (Tex.=20 App.CCorpus=20 Christi 1995, writ dism=3Dd) (same),=20 with Matelski v. Matelski, 840 S.W.2d 124 (Tex. = App.CFort Worth=20 1992, no writ) (holding that, under section 38.004, trial courts = can take=20 judicial notice of the amount of reasonable attorney=3Ds fees,=20 even when fees are recovered under the Family Code), and In re = Estate=20 of Kidd, 812 S.W.2d 356, 359 (Tex. App.CAmarillo=20 1991, writ denied) (applying sections 38.003 and 38.004 in a = will-contest=20 case).

In their=20 original petition, the Fitzgeralds state that they were entitled = to=20 attorney=3Ds fees=20 under paragraph 31 of the Lease, Chapter 36 of the Texas Civil = Practice=20 and Remedies Code, and sections 92.0081 and 92.109 of the Texas = Property=20 Code.  In its findings and conclusions, the trial court found = that=20 the Fitzgeralds were entitled to their reasonable = attorney=3Ds fees=20 under section 92.0081 of the Texas Property Code.  = See =20 Tex. Prop. Code,=20 ' = 92.0081(h)(Vernon Supp. 2000).  The trial court made no such = finding=20 under Chapter 38. Because the Fitzgeralds did not seek or obtain=20 attorney=3Ds fees=20 under section 38.001, they cannot rely on sections 39.003 and = 38.004 to=20 bridge the gap left by the lack of evidence of the reasonableness = of their=20 attorney=3Ds fees.=20  See London, 94 S.W.3d at 147B48. =20 Likewise, because the record contains no stipulation of the = parties and=20 because there is no evidence in the record as to the = reasonableness of the=20 Fitzgeralds=3D = attorney=3Ds fees, we=20 conclude that the trial court abused its discretion in awarding=20 attorney=3Ds fees to=20 the Fitzgeralds under section 92.0081(h) of the Texas Property = Code. =20 Accordingly, we sustain the Charettes=3D = second=20 issue.

IV. = Conclusion

This=20 Fitzgeralds=3D = cross-appeal was untimely filed and is dismissed for lack of=20 jurisdiction.  The Charettes=3D = challenge=20 to the trial court=3Ds finding=20 that they violated section 92.0081(b) of the Texas Property Code = is=20 without merit, and is overruled.  However, the = Charettes=3D = second=20 issue challenging the trial court=3Ds award of=20 attorney=3Ds fees to=20 the Fitzgeralds is sustained, and the judgment is modified to = vacate the=20 $25,422.90 attorney=3Ds fees=20 award to the Fitzgeralds.  The judgment is affirmed as = modified.=20

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

Judgment=20 rendered and Opinion filed December 21, 2006.

Panel=20 consists of Justices Fowler, Edelman, and Frost.

 

 


[1]  This suit was ultimately = dismissed as=20 moot.

[2]  Paragraph 24 of the Lease states = as=20 follows:

 

If a tenant abandons the Property, = Tenant will be=20 in default.  AAbandonment@ means Tenant fails to comply with an = provisions=20 of the Lease and occupy the Property for five (5) consecutive = days.=20 However, at any point during the term of this Lease, if Tenant has = moved=20 substantially all possessions from the property or does not have a = bed to=20 sleep in, the property will be deemed Aabandoned@ and Landlord has the right to enter = immediately=20 to protect the property without notice and without waiting for the = five=20 (5) day period to lapse... If Tenant abandons the property, Tenant = will be=20 responsible for all costs, including but not limited to reletting = charges,=20 utility fees, and locksmith service.

 

Although we do not reach the issue = asserted in the=20 Fitzgeralds=3D attempted cross-appeal regarding = interpretation=20 of this Lease provision, we note the trial court=3Ds finding that when the Fitzgeralds = moved=20 substantially all of their possessions and ceased to sleep at the = Rental=20 Property on June 23, 2004, they Aabandoned@ the Rental Property.  =

[3]  The Charettes claim that it was = not=20 necessary for them to remove the Fitzgeralds=3D personal property from the premises in = order to=20 lawfully prevent them from entering the Rental Property because = the=20 parties entered into a bailment agreement for storage of the=20 Fitzgeralds=3D property.  There is absolutely no=20 evidentiary support for this argument in the record.  And = even if the=20 parties had entered into some such agreement, the elements of a = legally=20 cognizable bailment were not established in this case.  = Moreover,=20 such an agreement would not expand or change the plain meaning of = the=20 terms set forth in section 92.0081(b) of the Texas Property = Code. =20

[4]  This is the only basis on which = the=20 Fitgeralds contend that the trial court could take judicial notice = of the=20 reasonableness of their attorney=3Ds fees.=20

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