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No. 05-19-00224-CV

COURT OF APPEALS

for the

FIFTH DISTRICT OF TEXAS

Dallas, Texas

CHRISTINE FLOREZ DESIO D/B/A PROFESSIONAL CENTER OF GRAND PRAIRIE 

AND FRACIS ANTHONY DESIO, JR. A/K/A FRANK DESIO, INDIVIDUALLY, Appellants

v.

MIKE DEL BOSQUE D/B/A INJURY AND REHAB CENTER IN GRAND PRAIRIE,

Appellee

Original Proceeding from the 14th Judicial District Court of Dallas County, Texas

Honorable Judge Eric V. Moyé, Presiding

Trial Court Cause No. DC-17-04408

APPELLEE’S BRIEF

TAILIM SONG LAW FIRM

Tailim Song

State Bar No. 00792845 

Tel: (214) 528-8400

Fax: (214) 528-8402

8111 Lyndon B. Johnson Freeway Suite 

480

Dallas, Texas 75251

Email: tsong@tailimsong.com

ATTORNEY FOR APPELLEE

ACCEPTED

05-19-00224-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

6/18/2019 5:17 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 6/18/2019 5:17:50 PM LISA MATZ Clerk
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IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rules of Appellate Procedure Rule 52.3(a), Appellee hereby certifies 

that the following is a complete list of all parties, attorneys, and any other persons who have any 

interest in the outcome of thislawsuit.

Appellants: Christine Florez Desio d/b/a Professional Center of Grand Prairie 

and Francis Anthony Desio, Jr. a/k/a Frank Desio, Individually

Counsel for Appellant: BUSH RUDNICKI SHELTON, P.C.

Grant A. Bannen

State Bar No. 00793300

200 N. Mesquite St., Suite 200

Arlington, Texas 76011

Tel: (817) 274-5992

Fax: (817) 261-1671

Appellees: Mike Del Bosque d/b/a Injury and Rehab Center in Grand Prairie

Counsel for Appellee: TAILIM SONG LAW FIRM

TAILIM SONG

State Bar No. 00792845 

tsong@tailimsong.com

JORDAN WHIDDON

State Bar No. 24093350

jwhiddon@tailimsong.com

8111 LBJ Freeway, Suite 480

Dallas, Texas 75251

Tel: (214) 528-8400

Fax: (214) 528-8402
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................. 2

INDEX OF AUTHORITIES........................................................................................................... 4

RECORD REFERENCES .............................................................................................................. 7

STATEMENT OF THE CASE....................................................................................................... 8

STATEMENT OF JURISDICTION............................................................................................... 9

STATEMENT REGARDING ORAL ARGUMENT..................................................................... 9

ISSUES PRESENTED.................................................................................................................... 9

STATEMENT OF FACTS ........................................................................................................... 10

SUMMARY OF THE ARGUMENT ........................................................................................... 13

ISSUE NUMBER 1: The Trial Court Properly Held that Appellants Breached the Second Floor 

Leases as there was No Ambiguity as to The Contracts............................................................... 17

A. Standard of Review ....................................................................................................... 17

B. The Second Floor Leases are Not Ambiguous.............................................................. 18

ISSUE NUMBER 2: The Trial Court Properly Held that Appellants Breached the Second Floor 

Leases as Appellants Did Not Post Notice Pursuant to Property Code Section 93.002(F) in 

Addition to Their Contractually Obligated Notice Requirements. ............................................... 21

ISSUE NUMBER 3: The Trial Court Properly Held that There is Not a Specific Contract 

Provision that Prevails Over General Contractual Provisions. ..................................................... 22

A. Standard of Review ....................................................................................................... 23

B. Appellants Breached the Contract for the First and Second Floor Leases.................. 24

ISSUE NUMBER 5: The Trial Court Properly Held that Appellants Prior Materially Breached 

and Failed to Mitigate Damages................................................................................................... 28

ISSUE NUMBER 6: The Trial Court Properly Held that Appellee was Entitled to Reasonable 

and Necessary Attorney’s Fees Because He was the Prevailing Party......................................... 29

A. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed On The 

Indistinguishable Counterclaim............................................................................................ 32

B. Attorneys’ Fees Granted Were Reasonable and Not Excessive.................................... 34

ISSUE NUMBER 7: The Trial Court Properly Held That Appellants Tortiously Interfered with 

the Contract, Tortiously Interfered with prospective Contracts, That Appellants Trespassed on 

Real Property, and Appellants Committed Conversion................................................................ 35

CONCLUSION............................................................................................................................. 40

PRAYER....................................................................................................................................... 40

CERTIFICATE OF COMPLIANCE............................................................................................ 41

CERTIFICATE OF SERVICE ..................................................................................................... 41
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INDEX OF AUTHORITIES

Cases

Anderson v. City of Seven Points, 80 S.W. 2d 791, 794 (Tex. 1991). .......................................... 21

Ashcraft v. Lookadoo, 952 S.W. 2d 907, 911 (Tex. App.—Dallas 1997, pet. denied)................. 21

Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. 948 S.W.2d 293, 299 (Tex. 1997) ...... 36

Ayoub v. Montelongo. 2001 WL 695521 (Tex. App.—El Paso, June 21, 2001, no pet.)............. 27

Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) ................................................................... 49

Brockie v. Webb, 244 S.W.3d 905 (Tex. App.—Dallas, 2008) .................................................... 41

Cain v. Bain, 709 S.W. 2d 175, 176 (Tex. 1986).......................................................................... 21

Cedar contracting, Inc. v. Hernandez, No. 03-11-00327-CV, 2014 WL 709560, *1, *4 (Tex. 

App.—Austin Feb. 21, 2014, pet. denied)................................................................................ 28

Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) ...................................................................... 24

Da Oca v. Gutierrez, No. 03-14-00668-CV, 2017 WL 393569 *4 (Tex. App.—Austin Jan. 25, 

2017, no pet.) ............................................................................................................................ 26

De La Rosa v. Kaples, 812 S.W.2d 432, 434 (Tex. App.—San Antonio 1991, writ denied). 41, 42

F.D.I.C. v. F & A Equip. Leasing, 854 S.W.2d 681, 685 (Tex. App.—Dallas 1993, no writ.).... 22

Farrar v. Hobby, 113 S.Ct. 566, 506 U.S. 103 (1992)........................................................... 37, 38

First Wichita National Bank v. Wood, 632 S.W.2d 210 (Tex. App.—Fort Worth 1982, no writ)41

Frank v. Kuhnreich, 546 S.W.2d 844, 848 (Tex. Civ. App.—San Antonio 1977, writ. ref’d n.r.e.)

................................................................................................................................................... 24

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010) ................................................................... 44

Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.—Austin, 2001)................................................. 44

Hooker v. Constellation Homebuilder Sys., Inc., 2008 WL 4057909, No. CIV. A. V-06-77, (S.D. 

Tex. Aug. 26, 2008).................................................................................................................. 42

Hughs v. Lee, 1997 WL 605080, No. 05-95-0145-CV (Tex. App.—Dallas Oct. 1, 1997).......... 23
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Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650 (Tex. 2009)...... 37, 38

Jakab v. Gran Villa Townhouses Homeowners Ass'n, Inc., 149 S.W.3d 863, 867 (Tex. App.—

Dallas 2004, no pet.)................................................................................................................. 20

Lakeside Vill. Homeowners Ass'n, Inc. v. Belanger, 545 S.W.3d 15, 36 (Tex. App. 2017)......... 49

McConnell v. Coventry Health Care Nat'l Network, No. 05-13-01365-CV, 2015 WL 4572431, 

(Tex. App. July 30, 2015)......................................................................................................... 47

Metroplex Glass Cent., Inc. v. Vantage Props., Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 

1983, writ refused n.r.e.)........................................................................................................... 48

Moreno v. Reliable Insulation, Inc., 217 S.W.3d 769, 770-71 (Tex. App.—Dallas, 2007)......... 44

Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196, 198 (Tex. 2004) (per 

curiam)...................................................................................................................................... 35

Navigant Consulting, Inc. v. Wilkinson. 208 F.3d 277, 298 (5th Cir. 2007) ................................ 40

Ortiz v. O.J. Beck and Sons, Inc., 611 S.W.2d 860 (Tex. App.—Corpus Christi 1980, no writ.) 41

Paragon Gen. Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 

2007, no pet.) ............................................................................................................................ 30

Ponderosa Pine Energy, LLC v. Illinova Generating Co., No. 05-15-00339-CV, 2016 WL 

3902559 (Tex. App.—Dallas July 14, 2016, no pet.)............................................................... 22

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000)................ 46

R&P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980) .................... 23

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990) .......................... 44

Scott Pelley P.C. v. Wynne, No. 05–15–01560–CV, 2017 WL 3699823, (Tex. App.—Dallas Aug. 

28, 2017, pet. denied).......................................................................................................... 22, 51

Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex. 1966). ............................... 23, 25

Small v. Parker Healthcare Mgmt. Org., No. 05-11-01471-CV, 2013 WL 5827822, (Tex. App.—

Dallas, Oct. 29, 2013) ............................................................................................................... 21

Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009)............................................... 37

Tony Gullo Motos I, L.P. v. Chapa, 212 S.W.3d, 50 Tex. Sup. Ct. J. 278 (Tex. 2006) ......... 40, 41
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Trudy’s Texas Star, Inc. v. City of Austin, 307 S.W.3d 894 (Tex. App.—Austin 2010, no pet.). 28

Tuttle v. Builes, 2019 WL 1301881, No. 11-17-00096-CV, (Tex. App.—Eastland, 2019) ......... 37

Veale v. Rose, 657 S.W.2d 834, 841 (Tex. App.—Corpus Christi-Edinburg 1991, writ denied) 41, 

42

Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428, (Tex. Apr. 26, 2019)

............................................................................................................................................. 43, 45

Wells Fargo Bank Minnesota, N.A. v. Kobernick, No. 8-CV-1458, 2009 WL 7808949, (S.D. Tex. 

May 29, 2009)........................................................................................................................... 28

Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied)............ 49

Wilkins v. Bain, 615 W.S.2d 314 (Tex. Civ. App.—Dallas 1981, no writ).................................. 41

Williamson v. Tucker, 615 S.W.2d 881 (Tex. App.—Dallas 1981, writ ref’d n.r.e.)................... 41

Statutes

TEX. PROP. CODE § 93.002(c) ............................................................................................ 32, 50

TEX. PROP. CODE § 93.002(f)..................................................................... 17, 25, 26, 27, 32, 33

V.T.C.A., Civil Practice & Remedies Code § 38.001 ............................................................ 37, 41
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RECORD REFERENCES

The Record citing conventions contained below are used throughout this Brief of 

Appellee.

___ CR ___, ¶ ___. The Clerk’s Record (The first blank is the volume number, the 

second blank is the page number that the document begins, and the 

third blank is the pinpoint cite e.g., 1 CR 4, ¶ 5-6).

___ RR p.___, line___. The Reporter’s Record from the Jury Trial (The first blank is the 

volume number and the second blank is the page number(s) and 

line number(s) e.g., 1 RR p. 20, lines 12-20.)

Ex. P-___. Appellant/Plaintiff’s exhibits to the Reporter’s Record
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STATEMENT OF THE CASE 

Nature of The case on appeal concerns the Appellants’ breach of 

the Case: their contracts as contained in their First and Second Floor 

Leases with Appellee as well as Appellants’ violations of Texas 

Property Code notice provisions. 

Final Judgment The Honorable Eric V. Moyé, Judge Presiding, signed the Final

signed by: Judgment on December 19, 2018. C.R. 446-448. The Honorable Eric V. 

Moyé, Judge Presiding, entered Findings of Fact and Conclusions of Law 

on January 18, 2019. C.R. 545-461.

Trial Court: 14th Judicial District Court, Dallas County, Texas

Final On November 13, 2018, the trial court, the Honorable Eric V. 

disposition by Moyé, Judge Presiding, presided over the bench trial in this matter.

Trial Court: 2 R.R. 1. On December 19, 2018, the Honorable Eric V. Moyé heard 

Appellee’s Motion for Entry of Judgment and signed the Final Judgment 

presented by Appellee at the hearing. C.R. 446. On January 18, 2019, the 

trial court enter Findings of Fact and Conclusions of Law. On March 8, 

2019, Appellants requested additional findings of fact and conclusions of 

law which were contrary to the trial court’s findings and were thereby 

denied. 
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STATEMENT OF JURISDICTION

This Court has jurisdiction to hear this appeal under Texas Constitution Article 5, Section 

6 and under Texas Government Code Section 22.220.

STATEMENT REGARDING ORAL ARGUMENT

Appellee respectfully requests oral argument in this case, as it may aid the Court in determining 

the issues presented. Tex. R. App. P. 39.7. This Case raises significant issues related to breach of 

contract and violations of the Texas Property Code. Additionally, this case addresses issues of 

contract interpretation and the awarding of attorneys’ fees. Oral argument would afford the Court 

the opportunity to question the parties and reach a decision on these matters.

ISSUES PRESENTED

1. The Trial Court Properly Held that Appellants Breached the Second Floor Leases 

as there was No Ambiguity as to The Contracts.

a. Standard of Review

b. The Second Floor Leases are Not Ambiguous

2. The Trial Court Properly Held that Appellants Breached the Second Floor Leases 

as Appellants Did Not Post Notice Pursuant to Property Code Section 93.002(F) in 

Addition to Their Contractually Obligated Notice Requirements.

3. The Trial Court Properly Held that There is Not a Specific Contract Provision that 

Prevails Over General Contractual Provisions.

4. Appellants Breached the Contract for the First and Second Floor Leases When 

They Intentionally Deprived Appellee from Entering the Leasehold and Appellee 

Could No Longer Enjoy the Use of The Leasehold.

a. Standard of Review

b. Appellants Breached the Contract for the First and Second Floor Leases

5. The Trial Court Properly Held that Appellants Prior Materially Breached and 

Failed to Mitigate Damages.

6. The Trial Court Properly Held that Appellee was Entitled to Reasonable and 

Necessary Attorney’s Fees Because He was the Prevailing Party
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a. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed on The 

Indistinguishable Counterclaim

b. Attorneys’ Fees Granted Were Reasonable and Not Excessive

7. The Trial Court Properly Held That Appellants Tortiously Interfered with the 

Contract, Tortiously Interfered with prospective Contracts, That Appellants 

Trespassed on Real Property, and Appellants Committed Conversion

STATEMENT OF FACTS

Mike DelBosque d/b/a Injury and Rehab Center (“Appellee”) had a commercial lease for 

Suite 101 (“First Floor Lease”) and three written commercial leases for Suite 200-202, Suite 206, 

and Suite 207/208 (collectively “Second Floor Leases”) with Appellants Christine Florez Desio 

d/b/a Professional Center of Grand Prairie. Appellant Francis Anthony Desio was the agent of Ms. 

Florez Desio and property manager of all the relevant Premises and corresponding leases 

(hereinafter, collectively, “Appellants”). 

The Second Floor Leases were written contracts drafted by Appellants. In the Second 

Floor Leases, Section 13.5 of the Second Floor Leases defined abandonment as “[f]ailure of Tenant 

for five (5) days or more to occupy the Premises for one or more of the purposes permitted under 

this Lease, unless such failure is excused under other provisions of this Lease.” 4 RR p. 180. 

Section 13.3 further provided that “[f]ailure of Tenant to comply with any term or condition or 

fulfill any obligation of the lease (other than the payment of rent or other charges) within twenty 

(20) days after written notice by Landlord specifying the nature of the default with reasonable 

particularity.” 4 RR p. 179. Thus, the contract only excepted the twenty (20) day notice 

requirement and opportunity to cure for failure to pay rent and no other reasons. 

On November 28, 2016, prior to sending any written or other notice, Appellants locked the 

Appellee out of the leasehold by changing the locks on the doors to the Second Floor Leases. 

Appellants’ sole basis for the lockout out was alleged abandonment. 2 RR p. 47. Appellants 
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testified Appellee still had personal property in the leasehold at the time of lockout. 2 RR p. 16. 

Remaining items included, but are not limited to, three refrigerators, a copy machine, office 

furniture, and office supplies. 1 CR 455, ¶ 7. Following the lockout, Appellants then called the 

scrapyard to retrieve and dispose Appellee’s personal property despite Appellee orally telling 

Appellants he intended to retrieve possession of the property. 2 RR p. 29-31. 

Additionally, Appellee testified he never intended to move out. 2 RR p. 79. Appellee even 

offered to continue to pay rent for the Second Floor Leases. 2 RR p. 31, lines 102-103. Appellee 

never at any time received a request for payment of further rent and never received his deposits 

back. 2 RR p. 103. Only after the lockout and refusal by Appellants to provide the benefit of the 

property did Appellee fail to pay rent for January. 2 RR p. 104. At the time of the lockout, Appellee 

was current on rent and had even prepaid the entire rent due for the month of December. 1 CR 455,

¶ 6. Additionally, at the time of the lockout, Appellee had not abandoned the property. 1 CR 455,

¶ 15. He did not leave the leases unoccupied. Id.

Following the November 30th lockout, Appellee was refused access to the Second Floor 

Leases and refused new keys. 1 CR 456, ¶ 20-22; 2 RR p. 31, 50. Further, the security deposits of 

the Second Floor Leases were never returned to Appellee. 2 CR 457, ¶ 31. Also, there was no 

evidence presented that Appellants attempted to mitigate their alleged damages. 2 RR p. 108. 

Landlord thereby breached the Second Floor Leases pursuant to the express contracts 

between the parties contained in the First Floor Lease and Second Floor Leases when it 

prematurely locked out Appellee for alleged abandonment even though five (5) days had not 

passed and no notice or opportunity to cure was provided. Appellant Francis Anthony Desio 

admitted at trial that he never gave Appellee notice or opportunity to cure. 2 RR p. 70. Appellee 
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testified at trial that he never received notice of default or an opportunity to cure. 2 RR p. 32, lines 

105-106. 

Written notices of default were not posted until January 21, 2017—fifty-two (52) days after 

Appellants locked out Appellee. 1 CR 456, ¶ 21; 2 RR p. 25. Even when these notices were posted, 

they did not identify abandonment as the reason for lockout or default. Appellant Francis Anthony

Desio conceded that this notice did not give the contractually agreed to twenty (20) day notice to 

cure. 2 RR p. 112. 

On March 30, 2017, Appellants locked Appellee out of the First Floor Lease. 1 CR 457, ¶ 

35. At the time of the lockout, Appellee was current on rent and otherwise not in default. 1 CR 

457, ¶ 36-37. Additionally, at the time of lockout, Appellants gave no written notice and no contact 

information for an individual or business from whom a new key could be retrieved. 1 CR 457, ¶ 

36. Appellee was forced to obtain a writ of reentry. 2 RR p. 43. Appellee then sought a temporary 

restraining order to resume operations. 2 RR p. 44. 

Following the issuance of a temporary restraining order and writ of reentry, Appellants 

again locked Appellee out of the First Floor Lease. 2 RR p. 44. On April 12, 2017, Appellants 

forced healthcare professionals, staff, and their patients to leave the first-floor leasehold. 1 CR 

457, ¶ 41. Appellants then chained the door shut with a large metal chain and padlock. 1 CR 457,

¶ 42. On April 13, 2017, Appellee’s marquee sign was removed by Appellants. 1 CR 457, ¶ 43. 

Appellants retained the entirety of the First Floor Lease’s security deposit, totaling $2,552.00. 1 

CR 458, ¶ 50. Further, as a result of these lockouts, Appellee was damaged as he lost clients and 

business. Patients were locked out and Appellee was not able to get the patients again. 2 RR p. 83-

85. 
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The trial court found in favor of Appellee and as the prevailing party, Appellee was entitled 

to attorney’s fees. 

SUMMARY OF THE ARGUMENT

The trial court properly held that Appellants breached the Second Floor Leases as there was 

no ambiguity as to the contract between Appellee and Appellants as contained in the Second Floor 

Leases. Pursuant to the Second Floor Leases, Appellants breached the Second Floor Leases when

Appellants locked out Appellee and Appellee was not given notice or an opportunity to cure the 

Second Floor Leases prior to the lockout. 

Section 13.3 of the Second Floor Leases that was prepared by Appellants explicitly states,

“[f]ailure of Tenant to comply with any term or condition or fulfill any 

obligation of the lease (other than the payment of rent or other charges) 

within twenty (20) days after written notice by Landlord specifying the 

nature of the default with reasonable particularity.”

Abandonment is an example of such “[f]ailure of Tenant to comply with any term or 

condition or fulfill any obligation of the lease (other than the payment of rent or other charges).”

However, Appellants ask the Court to disregard the contract and intentionally exclude 

abandonment from the notice requirement that was contractually provided for in Section 13.3. 

Appellants argue that because Section 13.3 does not expressly state “abandonment,” that 

abandonment should not be considered an event of default. But, there is no ambiguity here as 

Appellants suggest. Abandonment is an event of default, other than payment of rent or other 

charges, and as such, Appellants were required to give notice of default and an opportunity to cure 

to Appellee for his alleged abandonment of the Second Floor Leases. Appellants’ interpretation 

would read the express notice provision out of the lease. 
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Further, Section 13.5 does not excuse Landlord’s obligation to provide written notice of 

default. Section 13.5 states,

“[f]ailure of Tenant for five (5) days or more to occupy the Premises for one 

or more of the purposes permitted under this Lease, unless such failure is 

excused under other provisions of this Lease.”

The trial court did not add language to the contract as Appellants suggest. Rather, the trial 

court upheld the express language of the contract. Appellants make the argument that there is no 

notice requirement because Section 13.5 does not provide for a twenty-day notice. However, 

Sections 13.3 and 13.5 should be and were construed together. Read together, the five-day period 

prescribed in Section 13.5 does not become irrelevant as Appellants suggest. Rather, Section 13.5 

defines abandonment as a “[f]ailure of Tenant for five (5) days or more to occupy the Premises” 

and once Tenant has failed to occupy the Premises for over five (5) days, it would be a deemed a 

default, thereby mandating the notice requirement outlined in Section 13.3.

In the alternative, should the Court find that there are any doubts as to the meaning of the 

language of the lease, it should be resolved against the Appellants.

Appellants also did not comply with Property Code 93.002(f), which is consistent with the 

Second Floor Leases. Property Code 93.002(f) requiresthat a written notice be place on the tenant's 

front door stating the name and the address or telephone number of the individual or company 

from which the new key may be obtained. However, here, notice was not provided as prescribed 

by the Property Code in addition to Appellants’ failure to comply with its contractually obligated 

notice requirements. In fact, Appellants admitted no notice was posted pursuant to Property Code 

93.002(f). 2 RR p. 33, lines 2-4.

Additionally, the present case does not deal with conflicting contractual provisions in 

which there is a specific contract provision that prevails over general contractual provisions. 
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Sections 15.3 and 15.5 of the Second Floor Leases are not conflicting. There is no language 

expressly stating that abandonment shall constitute default without the notice required by Section 

15.3 or imposing an alternate notice requirement. The contract is clear. Abandonment is the 

“[f]ailure of Tenant for five (5) days or more to occupy the Premises” and in addition, 

abandonment is an event of default that is not for the payment of rent or other charges for which a 

twenty (20) day written notice specifying the nature of the default with reasonable particularity 

required. The fact that Section 15.5 does not contain its own specific notice provision is not 

sufficient to overcome the notice provision prescribed by Section 15.3. 

Therefore, the trial court properly held that Appellants breached the Section Floor Leases 

when the trial court found notice of termination was sent post lock out and ineffective as a matter 

of law and the fact that Appellants sent notice after the fact insinuates that Appellants also believed 

there was notice requirement. Because Appellants committed prior material breach and on the

Second Floor leases prior to Appellee allegedly abandoning the leasehold, the trial court properly 

found that Appellee did not breach the Second Floor Leases and that Appellants were the breaching 

party. 

The trial court properly held that Appellants committed prior material breach of the Second 

Floor Leases, which discharged or excused Appellees from further performance. Appellants 

prematurely locked out Appellee for alleged abandonment even though five (5) days had not 

passed and no notice or opportunity to cure were provided thereby breaching the Second Floor 

Leases. As a result, Appellee was unable to operate its business and lost current and prospective 

patients. 

The trial court properly held that Appellants failed to mitigate damages. Appellants never 

presented any evidence that they attempted to mitigate damages. As such, because of Appellants’ 
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failure to reasonably attempt to mitigate damages, Appellants cannot recover against Appellee in 

that regard.

The trial court properly held that Appellee was entitled to attorneys’ fees and that the 

attorneys’ fees granted were reasonable and not excessive. Appellee is entitled to recover 

attorney’s fees as the prevailing party because the trial court’s final judgment found in favor of 

Appellee and granted Appellee equitable relief. In this case, fee recovery is authorized by both 

under Texas Civil Practices and Remedies Code and by the express contract between Appellants 

and Appellee. Alternatively, Appellee had no obligation to segregate attorney’s fees because the 

claim and counterclaim were recoverable and indistinguishable. 

The trial court found Appellants liable to Appellee for tortious interference, trespass on 

real property, and conversion. The trial court properly held that Appellants tortiously interfered 

with Appellee’s existing contracts and prospective contracts by unlawfully locking out Appellee 

from his leaseholds, which proximately caused Appellee to lose potential patients and business 

opportunities. Further, the trial court properly held that Appellants trespassed on real property 

when it went onto Appellee’s leasehold while Appellee was current on rent, locked Appellee out, 

and called the scrapyard to retrieve and dispose Appellee’s personal property despite Appellee 

orally telling Appellants he would come back to retrieve the property. 2 RR p. 29-31.

The trial court also properly held that Appellants committed conversion in wrongfully 

retaining Appellee’s personal property. Appellants wrongfully locked Appellee out of his 

leasehold despite knowing Appellee still had personal property in the leasehold at the time of 

lockout. 2 RR p. 16. Remaining items included, but are not limited to, three refrigerators, a copy 

machine, office furniture, and office supplies for the purposes of storage. 1 CR 455, ¶ 7. Following 

the lockout, Appellants then called the scrapyard to retrieve and dispose Appellee’s personal 
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property despite Appellee orally telling Appellants he would come back to retrieve the property. 2 

RR p. 29-31. 

Therefore, for the aforementioned reasons, the trial court’s Final Judgment should be affirmed. 

ARGUMENTS AND AUTHORITIES

ISSUE NUMBER 1: The Trial Court Properly Held that Appellants Breached the Second 

Floor Leases as there was No Ambiguity as to The Contracts

A. Standard of Review

The standard of review urged by the Appellant is the wrong standard of review. Appellants

encourage the Court to apply a de novo standard to the conclusions of law that the trial court found. 

However, contract interpretation is a question for the factfinder, and generally the Court should 

“not disturb the trial court’s finding absent an abuse of discretion.” Jakab v. Gran Villa

Townhouses Homeowners Ass'n, Inc., 149 S.W.3d 863, 867 (Tex. App.—Dallas 2004, no pet.)

Appellants are not asking for contract construction which would be considered under a de novo

standard of review. Rather, Appellants ask that the Court find that the trial court erred in its 

findings. Therefore, the standard of review is abuse of discretion, not de novo.

In addition, findings of fact entered in a bench trial may be reviewed for legal and factual 

sufficiency. Ashcraft v. Lookadoo, 952 S.W. 2d 907, 911 (Tex. App.—Dallas 1997, pet. denied).

“[They] have the same force and dignity of a jury’s verdict upon questions” and are only 

reviewable by the same standards of the sufficiency of the evidence supporting a jury’s finding. 

See Anderson v. City of Seven Points, 80 S.W. 2d 791, 794 (Tex. 1991).

When reviewing for factual sufficiency of the evidence, “the court of appeals must 

consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to 

the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 
BRIEF OF APPELLEE Page 18 of 42

S.W. 2d 175, 176 (Tex. 1986). Importantly, appellate courts shall not substitute their judgment 

for the fact finder’s even if they would have personally decided differently, as the trial court must 

be the sole judge of credibility of witnesses and weight to be afforded to the evidence. See Small 

v. Parker Healthcare Mgmt. Org., No. 05-11-01471-CV, 2013 WL 5827822, at *3 (Tex. App.—

Dallas, Oct. 29, 2013) (mem. op.) (citing Ashcroft, 952 S.W.2d at 910). 

When reviewing for legal sufficiency of the evidence, the court is to “consider only the 

evidence and inferences, viewed in the most favorable light, that support the finding, and [the 

court] must disregard all evidence and inferences to the contrary; If there is more than a scintilla 

of evidence to support the finding, the legal sufficiency challenge fails.” F.D.I.C. v. F & A Equip. 

Leasing, 854 S.W.2d 681, 685 (Tex. App.—Dallas 1993, no writ.) (internal citations omitted). 

Meaning, if there is a reasonable basis for differing conclusions, there is more than a scintilla of 

evidence and the Appellee must prevail. See id.

As to unchallenged findings, they are “binding on the parties and the appellate court.” 

Ponderosa Pine Energy, LLC v. Illinova Generating Co., No. 05-15-00339-CV, 2016 WL 

3902559 at *3 (Tex. App.—Dallas July 14, 2016, no pet.). Where there is a complicated and 

substantial record from the trial court, the challenging party should attack the Findings of Fact 

with specificity and should be supported by the evidence. Scott Pelley P.C. v. Wynne, No. 05-15-

01560-CV, 2017 WL 3699823 at *6 (Tex. App.—Dallas, August 29, 2017) reh’g denied (Sept. 

29, 2017), review denied (Jan. 12, 2018). However, “where a party’s issue globally attacks the trial 

court’s Finding of Fact...the Finding of Fact issued by the Trial Court are binding on the appellate 

court.” Id. at *7. 

B. The Second Floor Leases are Not Ambiguous
BRIEF OF APPELLEE Page 19 of 42

The Second Floor Leases are not ambiguous as a matter of law. Further, Appellants 

prepared the Leases for the Second Floor. Section 13.3 unambiguously states, “[f]ailure of Tenant 

to comply with any term or condition or fulfill any obligation of the lease (other than payment of 

rent or other charges) within twenty (20) days after written notice by Landlord specifying the 

nature of the default with reasonable particularity.” [emphasis added]. 3 RR p. 45. The Second 

Floor Leases further provide, “[f]ailure of Tenant to comply with any term or condition or fulfill 

any obligation of the lease (other than the payment of rent or other charges).” 3 RR p. 45. 

A contract is not ambiguous when a certain or definite legal meaning or interpretation may 

be applied. See R&P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980). 

A contract is ambiguous only in the case that after the applicable rules are applied, the contract is 

still reasonably susceptible to more than one meaning. See Hughs v. Lee, 1997 WL 605080, No. 

05-95-0145-CV at * 2 (Tex. App.—Dallas Oct. 1, 1997). Notably, a contract is ambiguous only 

when it is “genuinely uncertain which one of the two meanings is the proper meaning.” See R&P 

Enters., 596 S.W.2d at 519. 

It is well established that leases are most strongly construed against the lessor. Sirtex Oil 

Industries, Inc. v. Erigan, 403 S.W.2d 784, 788 (Tex. 1966). A lease, like other written agreements, 

should also be given a reasonable construction that carries out the intention of the parties expressed 

by the language of the contract. Frank v. Kuhnreich, 546 S.W.2d 844, 848 (Tex. Civ. App.—San 

Antonio 1977, writ. ref’d n.r.e.). The contents of a written contract must be “construed as a unified 

whole unless they are so repugnant and inconsistent as to nullify each other.” See id. at 848. When 

appropriate, Courts have found contracts where the meaning and intentions of the parties becomes 

clear only when clauses are read together. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). 
BRIEF OF APPELLEE Page 20 of 42

Therefore, there is precedent for reading sections together to create an unambiguous contract. See 

id.

Here, Appellants have no basis to argue that the Second Floor Leases are ambiguous. The 

language of the Second Floor Leases clearly expresses the parties’ intentions. The trial court did 

not add language to the contract as Appellants suggest. Rather, the trial court upheld the express 

language of the Second Floor Leases. 3 RR 45. 

The notice and cure provision of the Second Floor Leases are unambiguous and supported 

by the Final Judgment, Findings of Fact, Conclusions of Law, and the trial evidence. Section 13.5 

defines abandonment as “tenant failing to occupy for five or more days the premises...”. 1 CR 

455, ¶ 16. Construed together, “abandonment” is an event of default other than for payment of rent 

or other charges, and therefore, Section 13.3 requires that a landlord give the tenant notice of the 

default on the property and twenty (20) days opportunity to cure the default. 1 CR 454, ¶ 5. Thus, 

Appellants had the responsibility to give Appellee notice of the alleged default prior to changing 

the locks on the Second Floor Leasehold and was required to wait another 20 days for Appellee to 

cure the alleged default. 1 CR 455, ¶ 11-12. However, this is not how the Appellants acted. 

Appellants prematurely locked Appellee out of the Second Floor Leasehold and failed to provide 

notice to Appellee until fifty-two (52) days later, when Appellants alleged the incorrect default for 

“failing to pay January rent.” 1 CR 455, ¶ 7-9; 1 CR 456, ¶ 21.

In the alternative, should the Court find that there are any doubts as to the meaning of the 

language of the Second Floor Leases, it should be resolved against the landlord, the Appellants, 

who prepared the Leases. See Sirtex Oil Industries, 403 S.W.2d at 788. Thus, the trial court 

properly found the Second Floor Leases to be unambiguous and that the Appellants breached the 

Second Floor Leases by locking Appellee out when Appellee was not in default of the Second 
BRIEF OF APPELLEE Page 21 of 42

Floor Leases. 1 CR 455, ¶ 11; 1 CR 459, ¶ 2-6. The holding was proper, and the Court should 

uphold the trial court’s Final Judgment.

ISSUE NUMBER 2: The Trial Court Properly Held that Appellants Breached the Second 

Floor Leases as Appellants Did Not Post Notice Pursuant to Property Code Section 

93.002(F) in Addition to Their Contractually Obligated Notice Requirements.

Appellants failed to comply with Property Code Section 93.002(f) when they did not post 

notice of default until fifty-two (52) days after Appellants prematurely changed the locks on the 

Second Floor leaseholds, which is required by the Texas Property Code. 

Property Code § 93.002(f) states:

If a landlord or a landlord's agent changes the door lock of a tenant 

who is delinquent in paying rent, the landlord or agent must place 

a written notice on the tenant's front door stating the name and the 

address or telephone number of the individual or company from 

which the new key may be obtained. The new key is required to be 

provided only during the tenant's regular business hours and only if 

the tenant pays the delinquent rent.

[emphasis added]. TEX. PROP. CODE. § 93.002(f).

Property Code § 93.002(f) imposes an additional requirement to the 20-day notice and 

opportunity to cure as provided in the Second Floor Leases. 1 CR 459, ¶ 18. In Da Oca v. Gutierrez, 

the court found that when there is no delinquent rent, lockout procedures were not proper. See No. 

03-14-00668-CV, 2017 WL 393569 *4 (Tex. App.—Austin Jan. 25, 2017, no pet.). In this case, 

Appellee was current on paying rent when Appellants locked Appellee out of the Second Floor 

leasehold. 1 CR 459, ¶ 2-3, 6; 1 CR 455, ¶ 6. Here, Appellee had prepaid rent for December 2016 

at the time of the lockout. 1 CR 455, ¶ 6. Appellants allege, after finally posting notice fifty-two 

(52) days after the lockout, that they changed the locks on the Second Floor leasehold because 

Appellee failed to pay January rent. 1 CR 456, ¶ 21-22. However, this timing of the lockout and 

the alleged default does not make logical sense—a lockout at the end of November 2016 does not 
BRIEF OF APPELLEE Page 22 of 42

align with failing to pay January 2017 rent. Therefore, Appellants cannot reasonably contend that 

Appellants had the right to change the locks on the Second Floor leaseholds for failing to pay rent. 

To add to Appellants’ failures, Appellants did not post notice in November 2016 when 

Appellants changed the locks on the Second Floor leaseholds. Even if Appellee had defaulted on 

the Second Floor Leases, Appellants did not post notice until January, fifty-two (52) days 

following the lockout. 1 CR 455, ¶ 9; 1 CR 456, ¶ 21. In fact, Appellants admitted no notice was 

posted prior to lockout pursuant to Property Code § 93.002(f). 1 CR 456, ¶ 12. Therefore, 

Appellants failed to meet their duties pursuant to the contract and the Property Code. 1 CR 456, ¶ 

12.

In support of their erroneous contention that the Property Code § 93.002(f) does not apply, 

Appellants cite to Ayoub v. Montelongo. 2001 WL 695521 (Tex. App.—El Paso, June 21, 2001, 

no pet.) (not designated for publication). However, Ayoub is readily distinguishable because in that 

case, the parties did not contractually agree to a twenty (20) day notice and opportunity to cure 

requirement in their lease. See id. Additionally, at issue in Ayoub was that the tenant “was going 

broke” and was delinquent in rent. See id. In the present case, at the time of lockout, Appellee was 

not delinquent on rent, and there was no evidence of financial instability. 2 RR p. 13, 28; (1 CR 

455, ¶¶ 6, 13, 14.) 

ISSUE NUMBER 3: The Trial Court Properly Held that There is Not a Specific Contract 

Provision that Prevails Over General Contractual Provisions.

The trial court found that there is no prevailing, specific provision because Sections 13.3 

and 13.5 should be read together. See 1 CR 455, ¶ 11. “Abandonment” is an event of default for 

which the landlord is required to provide notice and twenty (20) days opportunity to cure. Neither 

of these provisions conflict with one another nor should one be read as more specific than the 

other.
BRIEF OF APPELLEE Page 23 of 42

Appellants cite to authorities that are distinguishable from the case at hand. Specifically, 

Appellants cite to Wells Fargo Bank Minnesota, N.A. v. Kobernick, which deals with two 

conflicting terms—a provision with a notice requirement for default and a provision that excepts 

a particular event. No. 8-CV-1458, 2009 WL 7808949, *1-4 (S.D. Tex. May 29, 2009). Similarly, 

Appellants cite to Cedar contracting, Inc. v. Hernandez, where the court considered a “thirty-day 

notice requirement” and a conflicting “ten-day notice requirement.” No. 03-11-00327-CV, 2014 

WL 709560, *1, *4 (Tex. App.—Austin Feb. 21, 2014, pet. denied) (mem. op.). Trudy’s Texas 

Star, Inc. v. City of Austin also specifically concerns conflicting provisions. See generally Trudy’s 

Texas Star, Inc. v. City of Austin, 307 S.W.3d 894 (Tex. App.—Austin 2010, no pet.).

In this case, Sections 13.3 and 13.5 are not conflicting, and are thus distinguishable from 

the cases that Appellants cited. There is no language expressly stating that “abandonment” shall 

constitute default without the notice required by Section 13.3 and there is no alternate notice 

requirement as provided for abandonment. 3 RR p. 45. Abandonment is the “[f]ailure of Tenant 

for five (5) days or more to occupy the Premises.” 1 CR 455, ¶ 16. An event of default that is not 

for the payment of rent or other charges requires a twenty (20) day written notice specifying the 

nature of the default with reasonable particularity is required. 1 CR 454, ¶ 5. The fact that Section 

13.5 does not contain a notice provision is not sufficient to overcome the notice provision 

prescribed by Section 13.3.

ISSUE NUMBER 4: Appellants Breached the Contract for the First and Second Floor 

Leases When They Intentionally Deprived Appellee from Entering the Leasehold and 

Appellee Could No Longer Enjoy the Use of The Leasehold

A. Standard of Review

Appellants are asking the Court to reverse the judgment despite the great weight and 

preponderance of the evidence. The trial court found notice of termination was sent post lockout 
BRIEF OF APPELLEE Page 24 of 42

and ineffective as a matter of law. See 1 CR 455, ¶ 12; 1 CR 456, ¶ 21. The fact that Appellants 

sent notice after the fact insinuates that the Appellants also believed that a notice requirement 

existed. Id.

B. Appellants Breached the Contract for the First and Second Floor Leases

Appellants are liable for breaching the contracts Appellee and Appellants had for the First 

Floor and Second Floor Leases. “The elements for breach of contract are (1) the existence of a 

valid contract, (2) the plaintiff's performance or tendered performance, (3) the 

defendant's breach of the contract, and (4) damages as a result of the breach.” Paragon Gen.

Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.). 

The trial court found that there were valid Leases between Appellee and Appellants for the 

First and Second Floor Leases. 1 CR 459, ¶ 1. Regarding the Second Floor Lease, Appellee 

tendered his performance under the contract when he paid for November 2016 rent and prepaid 

for December 2016. 2 RR p. 13, ¶ 5. The Court found that Appellants breached the Second Floor 

Lease by unlawfully locking Appellee out of the leasehold when Appellee still had personal 

property on the leasehold, had paid for the leasehold in full, and was not in default for the leasehold

in any other way. 1 CR 459, ¶ 2-3, 6.

Appellee gave notice to Appellants that he would be moving some things from the Second 

Floor Lease leasehold on November 28, 2016. 1 CR 455, ¶ 7-8. Appellee even told Appellants that 

he intended to continue paying for the Second Floor Lease. 1 CR 455, ¶ 8. Appellants breached 

the Second Floor Lease when Appellants changed the locks on November 30, 2016. 1 CR 455, ¶

9. Appellants claim that their entering the leasehold, rekeying the locks, and alleged that throwing 

away Appellee’s personal property was justified because Appellee had abandoned the Property. 2 

RR p. 47, lines 4-7. However, Section 13.5 in the Second Floor Leases expressly defines 
BRIEF OF APPELLEE Page 25 of 42

“abandonment” as the tenant failing to occupy for five or more days the premises for one or more 

of the purposes permitted under this lease. 1 CR 455, ¶ 15-16 [emphasis added]. Appellee had not 

abandoned the leasehold at the time of the lockout because it had only been two (2) days of 

unoccupancy over a holiday weekend that Appellants changed the locks. Id.; See 1 CR 455, ¶ 7, 9, 

15.

Additionally, even if Appellee defaulted by abandonment, the Second Floor Lease required 

Appellants give Appellee written notice specifying the nature of their default and twenty (20) days 

to cure the default. 1 CR 459, ¶ 18. However, Appellants did not provide notice. Thus, the trial 

court reasonably concluded that Appellants breached and therefore Appellee was justified for 

discontinuing to pay rent for the remainder of the Second Floor Leases (1 CR 459, ¶ 14) when 

Appellants had locked Appellee out, threw away his personal property, and did not give him any 

way to remedy the alleged default. 1 CR 456, ¶ 18-20. Further, Appellants did not give notice to 

Appellee how to regain entry onto the leasehold and thereby breached the Second Floor Leases. 1 

CR 456, ¶ 20; 1 CR 459, ¶ 13. 

The evidence clearly establishes that Appellee did not abandon, Appellee did not breach, 

Appellants locked Appellee out, and thus the Appellants breached the Second Floor Lease. 1 CR 

455, ¶ 7-9; 1 CR 459, ¶ 2-3, 6, 13. Appellee was current on all rent payments, had prepaid rent for 

the following month, and that Appellants unlawfully locked Appellee out of the Second Floor 

leaseholds without providing any notice. 1 CR 455, ¶ 6; 1 CR 459, ¶ 2-3; 1 CR 459, ¶ 18; 1 CR 

456, ¶ 29. Evidence establishes that Appellee did not fail to occupy the Second Floor leasehold for 

more than five (5) days because he still had personal property on the leasehold and told Appellants 

that he would return for the property. 1 CR 455, ¶ 7-9. Moreover, because Appellee made it clear 
BRIEF OF APPELLEE Page 26 of 42

that he intended to continue to occupy the Second Floor leaseholds when he told Appellants that 

he would continue to make rent payments for the Lease term. Id.

With respect to the First Floor Lease, the trial court found that Appellants unlawfully 

locked Appellee out of the First Floor Lease on March 30, 2017. 1 CR 457, ¶ 35. Appellee was 

current on rent for the First Floor Lease and was otherwise not in any other default for the

leasehold. 1 CR 460, ¶ 29-30. According to their Lease, Appellants agreed to provide “exclusive, 

quiet, peaceable and undisturbed and uninterrupted possession of the leased premises during the 

term of [the] Texas Commercial Lease.” 1 CR 460, ¶ 31. 

Appellants breached the First Floor Lease when they locked Appellee out of the First Floor 

leasehold on March 30, 2017. 1 CR 457, ¶ 35. Under section 93.002(c) of the Texas Property Code, 

a commercial landlord is prohibited from intentionally preventing a tenant from entering a leased 

premises. 1 CR 460, ¶ 32. Further, Appellants failed to place written notice on the tenant’s door or 

give them contact information to retrieve a new key upon curing the claimed default for delinquent 

rent payments. 1 CR 457, ¶ 36. Therefore, Appellants violated section 93.002(f) of the Texas 

Property Code which requires a commercial landlord to give tenant written notice of the default 

and contact information to retrieve a new key upon curing the delinquent rent payment. TEX. 

PROP. CODE § 93.002(f); 1 CR 457, ¶ 33; 1 CR 460, ¶ 33; 1 CR 461, ¶ 41.

After the unlawful lockout and not posting any notice for how to cure the claimed default, 

Appellee had to resort to self-help to regain possession of the First Floor leasehold. 1 CR 457, ¶ 

39. After applying for and receiving a Writ of Reentry from the Justice Court (1 CR 457, ¶ 38), 

Appellants forcibly entered the First Floor leasehold, forced Appellee and his staff of healthcare 

professionals to vacate the leasehold and chained the door shut with a large metal chain and 

padlock. 1 CR 457, ¶ 35-42. The next day, Appellants removed the marquee sign for Appellee’s 
BRIEF OF APPELLEE Page 27 of 42

business. 1 CR 457, ¶ 43. As a result, Appellee suffered damages by being unable to conduct his 

business and causing lost business income and wages. 1 CR 457, ¶ 31-32; 1 CR 458, ¶ 50-53; 1 

CR 460, ¶ 20-21; 1 CR 461, ¶ 35-36.

Appellants intentionally prevented Appellee from entering the First Floor and Second Floor 

Leases by changing the locks and throwing away Appellee’s personal property, thus constructively 

evicted them, and forced Appellee to abandon the Property. 1 CR 459, ¶ 9-16. The trial court found 

the Appellants’ measures substantially interfered with Appellee’s use and enjoyment of the 

leaseholds. 1 CR 459, ¶ 11. The trial court further found that Appellants intended to permanently 

deprive Appellee from the First and Second Floor Leases. 1 CR 459, ¶ 12. As a result, Appellee 

lost personal property, lost business opportunities, lost wages and income, as well as lost good 

rapport with his patients. 1 CR 454, ¶ 7; 1 CR 456, ¶ 19.

Therefore, Appellants failed to sufficiently and specifically overcome a factual and legal 

sufficiency review. Appellants failed to meet the high burden of the great weight and burden of 

preponderance of the evidence. It is clear from the record that Appellants breached the Second 

Floor Leases when they prematurely locked Appellee out of the Second Floor leaseholds when 

Appellee had not abandoned the leaseholds, was not delinquent on rent payments, nor in default 

as to any other respect of the Second Floor Leases. Additionally, Appellants did not post notice of 

the alleged default, did not provide time to cure the default, and failed to provide a way to obtain 

a new key for the leaseholds. 1 CR 455, ¶ 11-12; 1 CR 459, ¶ 18. It is also clear from the record 

that Appellants breached the First Floor Lease when they changed the locks even though Appellee 

was not in default for any provision of the First Floor Lease, and chained the doors shut and took 

down the marquee sign after Appellee had to seek out a writ of reentry and a temporary restraining 

order. 1 CR 460, ¶ 28; 1 CR 457, ¶ 37-43. Thus, it is a rational and reasonable conclusion as from 
BRIEF OF APPELLEE Page 28 of 42

the weight of the evidence and Findings of Fact, Appellants breached the Second Floor Leases. 

Appellants failed to meet the high burden to show that the trial court was wrong to conclude in 

favor of Appellee. 

ISSUE NUMBER 5: The Trial Court Properly Held that Appellants Prior Materially 

Breached and Failed to Mitigate Damages

Appellants committed a prior material breach, thus discharging Appellee of his duties 

under the contract. “It is a fundamental principle of contract law that when one party to a contract 

commits a material breach of that contract, the other party is discharged or excused from further 

performance.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196, 198 (Tex. 2004) 

(per curiam). To determine if a breach is material, the court weighs the following five 

circumstances: the extent to which the injured party will be deprived of the benefit which he 

reasonably expected; the extent to which the injured party can be adequately compensated for the 

part of that benefit of which he will be deprived; the extent to which the party failing to perform 

or to offer to perform will suffer forfeiture; the likelihood that the party failing to perform or to 

offer to perform will cure his failure, taking account of the circumstances including any reasonable 

assurances; and the extent to which the behavior of the party failing to perform comports with 

standards of good faith and fair dealing. See id. at 199.

Here, Appellants took unlawful remedial measures to lock Appellee out of the Second 

Floor leaseholds without Appellee abandoning the Second Floor leaseholds or otherwise being in 

default on the Second Floor Leases. 1 CR 459, ¶ 2-3, 6. Appellants were not justified to act against 

Appellee because Appellee never defaulted on any of the Second Floor or First Floor Leases. 1 

CR 459, ¶ 1-3, 1 CR 460, ¶ 28-30. By breaching the Second Floor and First Floor Leases before 

the Leases were set to terminate, Appellants deprived Appellee of the use and enjoyment of the 

leaseholds, deprived Appellee of business opportunities, wages, income, and personal property. 1 
BRIEF OF APPELLEE Page 29 of 42

CR 459, ¶ 10-12, 1CR 460, ¶ 23-25, 1 CR 461, ¶ 43. Further, Appellants forcibly removed 

Appellee from the First Floor leasehold by chaining the door shut and removing the marquee sign 

outside the leasehold. 1 CR 457, ¶ 42-43. Appellants only had the right to take remedial measures 

if Appellee defaulted on any of the Leases. Therefore, the trial court agreed and found that

Appellants breached the First Floor and Second Floor Leases, thus Appellee was in the right to 

abandon the leaseholds and not pay for the remainder of monthly rents. 

Furthermore, when a tenant abandons a commercial property, a landlord has a duty to make 

reasonable efforts to mitigate damages. See Austin Hill Country Realty, Inc. v. Palisades Plaza, 

Inc., 948 S.W.2d 293, 299 (Tex. 1997). A landlord's failure to use reasonable efforts to mitigate 

damages bars the landlord's recovery against the tenant in that the damages reasonably could have 

been avoided. See id. at 299. Here, Appellee suffered damages as a result of Appellants’ breach. 1 

CR 457, ¶ 32, 1 CR 458, ¶ 51. Appellants never presented any evidence that they attempted to 

mitigate damages. As such, the trial court properly found in favor of Appellee as to Appellants’

affirmative defense of failure to mitigate damages. See 1 CR 2319. Therefore, because of 

Appellants’ failure to reasonably attempt to mitigate damages, Appellants cannot recover against 

Appellee in that regard.

ISSUE NUMBER 6: The Trial Court Properly Held that Appellee was Entitled to 

Reasonable and Necessary Attorney’s Fees Because He was the Prevailing Party

Appellee is entitled to recover attorney’s fees as the prevailing party because the trial 

court’s Final Judgment found in favor of Appellee and granted Appellee equitable relief. First, the 

trial court properly concluded Appellee is entitled to recovery of attorney’s fees because Appellee 

is authorized under Texas law and by the contract terms agreed to in the Second Floor Leases.

Generally, a litigants’ attorney fees are recoverable if authorized by a statute or by a contract 

between the parties. Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650 
BRIEF OF APPELLEE Page 30 of 42

(Tex. 2009); Farrar v. Hobby, 113 S.Ct. 566, 506 U.S. 103 (1992). Additionally, the Texas Civil 

Practices and Remedies Code § 38.001 permits recovery of attorney’s fees when a party prevails 

over a breach of contract claim. Tex. Civ. Prac. & Rem. § 38.001. More specifically, Texas law 

holds that “trial court[s] ha[ve] no discretion to deny” an award of reasonable attorney’s fees if a 

plaintiff prevails on a breach-of-contract claim and recovers damages. Tuttle v. Builes, 2019 WL 

1301881, No. 11-17-00096-CV, at *9 (Tex. App.—Eastland, 2019) (citing Smith v. Patrick W.Y. 

Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009)). 

In this case, fee recovery is authorized by both under Texas Civil Practices and Remedies 

Code and by the express contract between Appellants and Appellee. First, Section 29.1 of the 

Second Floor Leases authorizes attorney’s fees to be recovered. Specifically, it states “the 

defaulting party shall pay, immediately upon demand, the other party’s reasonable attorney’s fees, 

collection costs, costs of litigation.” 1 CR 128, ¶ 29-29.1. Thus, Appellee is authorized to recover 

attorney’s fees by the parties’ express agreement as found in the Second Floor Leases. 

Secondly, Appellee is entitled to attorney’s fees because the Final Judgment found 

Appellee was the prevailing party on its breach of contract claims. For a party to prevail on a claim, 

the Supreme Court of the United States holds a plaintiff must gain actual relief on the merits of his 

claim.” Intercontinental Grp. P’ship, 295 S.W.3d 650 (Tex. 2009) (citing Farrar v. Hobby, 113 S. 

Ct. 566, 506 U.S. 103 (1992)). The gained relief must “materially alter the legal relationship 

between the parties” in a way which “modif[ies] the defendant’s behavior in a way that directly 

benefits the plaintiff.” Intercontinental Grp. P’ship, 295 S.W.3d 650 (Tex. 2009) (citing Farrar v. 

Hobby, 113 S. Ct. 566, 506 U.S. 103 (1992)). Essentially, the Supreme Court states the plaintiff 

must obtain affirmative judicial relief to be a prevailing party. Intercontinental Grp., 295 S.W.3d 

at 655-56 n.17.
BRIEF OF APPELLEE Page 31 of 42

In this case, Appellee not only was held as the prevailing party, but also gained affirmative 

judicial relief. First, in their Final Judgment the trial court stated Appellee was a prevailing party 

because, 

The Court finds in favor of Plaintiff and against Defendants as to Plaintiff’s claims 

for Breach of Contract, Interference with Existing Contract, Interference with 

Prospective Contracts, Trespass to Real Property, and Conversion; 

The Court finds in favor of Plaintiff and against Defendants as to Defendant’s 

affirmative defense of failure to mitigate damages; 

The Court finds in favor of Plaintiff and against Defendants as to Defendants’ claim 

for Breach of Contract; 

The Court finds in favor of Plaintiff and against Defendants as to Plaintiff’s 

affirmative defense of prior material breach; 

The Court finds that Plaintiff, having selected to recover on his claim for breach of 

contract claim against Defendant Christine, is entitled to damages, reasonable and

necessary attorneys’ fees, and costs of court; 

Final J., 1 CR 2319-21. Thus, as the prevailing party, Appellee is entitled to recover attorney’s 

fees. In addition to being the prevailing party, Appellee received affirmative judicial relief. Prior 

to trial, the trial court granted Appellee’s Temporary Restraining Order against Appellants. This 

injunctive relief materially altered the relationship between the parties, because it ordered the 

Appellants to be temporarily restrained from: 

interfering with Plaintiff’s business by directly or indirectly wrongfully locking out 

Plaintiff, himself, and his officers, vendors, providers, agents, contractors, doctors, 

and employees, including act of changing the locks of the leasehold; directly or 

indirectly falsely imprisoning Plaintiff’s patients or doctors, employees; interfering 

with Plaintiff’s business by directly or indirectly wrongfully preventing access to 

Plaintiff’s Lease by blocking the parking lot interfering with Plaintiff and the 

Plaintiff’s business by, within five (5) days of the Temporary Restraining Order, 

returning all personal property, business personal property, cash, employee 

information, employee lists, customer lists, private information regarding doctors, 

employees, the business, and customer information that have been removed from 

the business including, but not limited to, the marquee sign removed from the 

premises; interfering with Plaintiff’s business by, directly or indirectly, wrongfully 

taking possession of Plaintiff’s personal property or business property; directly or 

indirectly making untruthful or disparaging statements against Plaintiff; 

committing any act which would make it impossible to carry on the ordinary course 

of business of Plaintiff; 
BRIEF OF APPELLEE Page 32 of 42

TRO, 1 CR 8, ¶ 8-10. Therefore, in addition to being named as the prevailing party, the trial court 

granted affirmative judicial relief from the Temporary Restraining Order which the Appellee 

directly benefitted from—thereby entitling Appellee to attorney’s fees.

In conclusion, Appellee is the prevailing party entitled to recover reasonable attorney’s 

fees both under the Texas Civil Practice and Remedies Code and as the prevailing party. Therefore, 

the trial court properly granted Appellee attorney’s fees. 

A. Appellee Is Entitled to Attorney’s Fees Because Appellee Prevailed On The 

Indistinguishable Counterclaim.

Alternatively, Appellee had no obligation to segregate attorney’s fees because the claim 

and counterclaim were recoverable and indistinguishable. Generally, attorneys are required to 

segregate fees for legal services between recoverable and nonrecoverable claims. See Navigant 

Consulting, Inc. v. Wilkinson. 208 F.3d 277, 298 (5th Cir. 2007). The question to the extent whether 

claims can or cannot be segregated is a mixed question of law and fact for factfinder. See Tony 

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312-13 (Tex. 2006). However, Appellee qualifies 

for the exception to the general rule.

The exception to recovering for defense of a claim applies when “the matters encompassed 

by the claim and counterclaim are indistinguishable.” De La Rosa v. Kaples, 812 S.W.2d 432, 434 

(Tex. App.—San Antonio 1991, writ denied); Tony Gullo Motos I, L.P. v. Chapa, 212 S.W.3d, 50 

Tex. Sup. Ct. J. 278 (Tex. 2006). 

A claim and counterclaim are indistinguishable where they arose from the same 

transactions, and where the same facts required to prosecute the claim are required to defend 

against the counterclaim. Veale v. Rose, 657 S.W.2d 834, 841 (Tex. App.—Corpus ChristiEdinburg 1991, writ denied); (citing First Wichita National Bank v. Wood, 632 S.W.2d 210 (Tex. 

App.—Fort Worth 1982, no writ)); Wilkins v. Bain, 615 W.S.2d 314 (Tex. Civ. App.—Dallas 
BRIEF OF APPELLEE Page 33 of 42

1981, no writ); Ortiz v. O.J. Beck and Sons, Inc., 611 S.W.2d 860 (Tex. App.—Corpus Christi 

1980, no writ.); See also Williamson v. Tucker, 615 S.W.2d 881 (Tex. App.—Dallas 1981, writ

ref’d n.r.e.)). In the event a plaintiff’s breach of contract claim and a defendant’s counterclaim 

arises from the same transaction and the same facts required to prosecute the claim are required to 

defend against the counterclaim,” attorney’s fees are then appropriate for the defendant’s 

counterclaim. See V.T.C.A., Civil Practice & Remedies Code § 38.001; Brockie v. Webb, 244 

S.W.3d 905 (Tex. App.—Dallas, 2008); See Hooker v. Constellation Homebuilder Sys., Inc., 2008 

WL 4057909, No. CIV. A. V-06-77, at *5 (S.D. Tex. Aug. 26, 2008). 

For example, courts have found claims and counterclaims to be indistinguishable when 

they concern disputes over the same contract. For example, in Veale v. Rose the Corpus Christi 

Court of Appeals held a claim and counterclaim were indistinguishable when both claims alleged 

breaches of the same contract. 657 S.W.2d 834 (Tex. App.—Corpus Christi-Edinburg, 1983). The 

Veale Court reasoned that the two claims were so interrelated, that the counsel spent “no more 

time in preparation to defend against the counterclaim than was necessary to meet appellant’s 

defenses to the primary lawsuit.” Id. at 841. Additionally, in De La Rosa v. Kaples, the San Antonio 

Court of Appeals also found a claim and counterclaim to be indistinguishable when the matters 

encompassed the same contract and transaction. De La Rosa, 812 S.W.2d at 434.

Similarly, in our case, the claim and counterclaim are indistinguishable because they are 

both breach of contract claims for the same contract—the Commercial Lease for the First Floor 

and the Commercial Leases for the Second Floor. Appellee and Appellants sued one another on 

respective breach of contract claims. Appellee’s claim and Appellants counterclaim arise out of 

the same facts—breach of the First Floor and Second Floor Leases. Pl.’s First Am. Pet., 1 CR 343,

¶ 44-47. Appellee was successful on his breach of contract claim by receiving affirmative judicial 
BRIEF OF APPELLEE Page 34 of 42

relief, thus Appellee was the prevailing party. Additionally, because claim and counter claim were 

indistinguishable, Appellee was not required to segregate fees prosecuting their own claim and 

defending the counterclaim. Appellants then counterclaimed against Appellee for their breach of 

contract claim, arising from the same facts. Def.’s Third Am. Answer and Countercl., 1 CR 381, 

¶ 10-14. Specifically, the facts for Appellee’s claim, and Appellee’s defense of the counterclaim 

both relied on Appellants’ breach of the First Floor and Second Floor Leases when it locked 

Appellee out of the leaseholds and failed to provide written notice and opportunity to cure. 1 CR 

456, ¶ 21-23. Thus, the claim and counterclaim are indistinguishable because they both require the 

facts. The trial court properly held that Appellee was entitled to attorney’s fees because not only 

was it the prevailing party but the matters encompassed by the claim and counterclaim are 

indistinguishable and thereby Appellee was not required to segregate fees. 

B. Attorneys’ Fees Granted Were Reasonable and Not Excessive

 

The sum of seventy-five thousand and thirty-three dollars ($75,033.00) is reasonable and 

necessary attorney’s fees for litigating the present case through a bench trial. The Texas Supreme 

Court has confirmed the lodestar method for the calculation of necessary and reasonable attorney’s 

fees. See Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428, at *20 (Tex. 

Apr. 26, 2019). The Court held that “the fact finder’s starting point for calculating attorney’s fee 

award is determining the reasonable hours worked multiplied by a reasonable hourly rate,” and the 

fee claimant bears the burden of providing sufficient evidence. Id. at *20 (Tex. Apr. 26, 2019). 

Sufficient evidence is met by evidence of (1) particular services performed, (2) who performed 

those services, (3) approximately when the services were performed, (4) the reasonable amount of 

time required to perform the services, and (5) the reasonable hourly rate for each person performing 

such services. See id. at *20 (citing El Apple, 370 S.W.3d at 762-63). Further, the Court held a 
BRIEF OF APPELLEE Page 35 of 42

“reasonable” attorney’s fee is “one that is not excessive or extreme, but rather moderate or fair.” 

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).

In general, clear and uncontroverted evidence of attorney’s fees is taken as true as a matter 

of law. Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.—Austin, 2001) (citing Ragsdale v. 

Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990)). Further, uncontroverted 

evidence of attorney’s fees is especially taken as true as a matter of law when the opposing party 

has not rebutted the evidence. Id. Moreover, courts may “draw upon its common knowledge and 

experience” to determine the amount that is reasonable and necessary. Moreno v. Reliable 

Insulation, Inc., 217 S.W.3d 769, 770-71 (Tex. App.—Dallas, 2007). 

Here, Appellee provided clear and uncontroverted evidence of its attorney’s fees. As shown 

in the Affidavit of Tailim Song, Appellee provided sufficient evidence of the services performed, 

such as Tailim Song’s appearance at motion hearings, drafting and reviewing discovery and 

documents, and appearing and proceeding through trial, and the dates of when the services were 

performed. See 2 CR Supp. 2349-2355. In addition, the affidavit provided sufficient evidence of 

who performed the services such as by Tailim Song, and his Associates Jordan Whiddon, Joseph 

Skaist, and Haben Tewelde and their reasonable hourly rate that is customary for a lawyer with 

their level of experience. See Aff. of Tailim Song, 2 C.R. Supp. 2323-2325, ¶ 1-7. Accordingly, 

Appellee has met their burden of providing sufficient evidence for the lodestar method, which is 

presumptively reasonable. Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 

1873428, at *20 (Tex. Apr. 26, 2019). Thus, Appellee has provided clear and uncontroverted 

evidence its attorney’s fees of seventy-five thousand and thirty-three dollars ($75,033.00) are 

reasonable and not excessive for litigating the present case. 

ISSUE NUMBER 7: The Trial Court Properly Held That Appellants Tortiously Interfered 

with the Contract, Tortiously Interfered with prospective Contracts, That Appellants 
BRIEF OF APPELLEE Page 36 of 42

Trespassed on Real Property, and Appellants Committed Conversion

Moreover, the trial court held that Appellants are liable to Appellee for tortious interference

with the existing contracts as well as prospective contracts, trespass on real property, and 

conversion. Appellants tortiously interfered with the existing contracts for the First and Second 

Floor Lease when they unlawfully locked out Appellee from his leaseholds, proximately causing 

Appellee to turn away potential patients and lose business opportunities. To prove that a defendant 

tortiously interfered with the existing contract, the plaintiff must prove that “(1) 

an existing contract subject to interference, (2) a willful and intentional act of interference with 

the contract, (3) that proximately caused the plaintiff's injury, and (4) caused actual damages or 

loss.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). 

Here, Appellants locked Appellee out of the leasehold without notice or opportunity to 

remedy the situation. 1 CR 455, ¶ 12; 1 CR 457, ¶ 36. As a direct result, Appellee lost business 

profits, wages, and personal property. 1 CR 458, ¶ 51; 1 CR 460, ¶ 32. Further, Appellants kept all 

security deposits Appellee paid for the Second Floor and First Floor leaseholds worth $2,552.00. 

1 CR 457, ¶ 31; 1 CR 459, ¶ 13-14; 1 CR 460, ¶ 23-27. Appellee’s losses only happened as a result 

of Appellants’ unlawful actions. Otherwise, Appellee would still be operating its business in the 

Second Floor and First Floor leaseholds and would be running a profitable and sustainable 

business. 1 CR 460, ¶ 23-27.

“To prevail on a claim for tortious interference with prospective business relations, the

plaintiff must establish: (1) there was a reasonable probability that the plaintiff would have entered

into a business relationship with a third party; (2) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; (3) the defendant's conduct was independently tortious
BRIEF OF APPELLEE Page 37 of 42

or unlawful; (4) the interference proximately caused the plaintiff's injury; and (5) the plaintiff

suffered actual damage or loss as a result.” McConnell v. Coventry Health Care Nat'l Network, 

No. 05-13-01365-CV, 2015 WL 4572431, at *6 (Tex. App. July 30, 2015). 

Appellants consciously interfered with Appellee’s business operations on April 12, 2017,

Appellant Francis Anthony Desio, retaliated against Appellee when he blocked the entrance to the

First Floor leasehold, falsely imprisoned, yelled at and threatened Appellee’s patients and

professional staff. 1 CR 20, ¶ 17. Appellant Francis Anthony Desio further forced Appellee, his

professional staff, and patients to leave the First Floor leasehold, causing them to fear for their

safety, thus leaving the leasehold. 1 CR 20, ¶ 17; 1 CR 21, ¶ 18. As a consequence of Appellants’

tortious and unlawful actions, Appellee’s staff have not been able to work or conduct their

business, so they have left to work elsewhere. 1 CR 23, ¶ 31. Additionally, potential patients went

elsewhere for treatment. See id. Appellee took the time and effort to train the medical professionals

he hired for his business and has developed a professional working relationship with them. 1 CR

23, ¶ 29.

The trial court found that Appellants constructively evicted Appellee from the Second 

Floor leaseholds. Appellants constructively evicted Appellee when they intentionally changed the 

locks on the door, and threw away Appellee’s personal property, depriving Appellee of the use 

and enjoyment of the Leasehold. 1 CR 459, ¶ 9 For a landlord to constructively evict a tenant, they 

must: (1) An intention on the part of the landlord that the tenant shall no longer enjoy the premises, 

which intention may be inferred from the circumstances; (2) A material act by the landlord or those 

action for him or with his permission 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; (4) The tenant must abandon the premises within a 
BRIEF OF APPELLEE Page 38 of 42

reasonable time after the commission of the act. Metroplex Glass Cent., Inc. v. Vantage Props., 

Inc., 646 S.W.2d 263, 265 (Tex. App.—Dallas 1983, writ refused n.r.e.).

. Appellants intentionally prevented Appellee from entering the leaseholds, Appellants had 

the intent to permanently exclude Appellee from the Leaseholds, and Appellants intended the 

Appellee no longer enjoy the Leaseholds. 1 CR 456, ¶ 23-28; 1 CR 459, ¶ 10-12; 1 CR 455 ¶ 10, 

1 CR 456 ¶ 23, 24. Further, after the lockout, Appellants never gave Appellee new keys and was 

never allowed back into the space. 1 CR 456, ¶ 20. 

Appellant’s lockout substantially interfered and permanently deprived Appellee the use 

and enjoyment of the Second Floor Lease because Appellee never regained access into the 

leasehold nor provided a place to pick up a key. 1 CR 456, ¶ 18; 1 CR 456, ¶ 26; 1 CR 456, ¶ 29. 

Therefore, Appellee lost personal property and could not operate his business efficiently and 

effectively without the personal office equipment. See 1 CR 456, ¶ 18. Moreover, the trial court 

found that Appellants intended to permanently deprive Appellee of the space because Appellants 

had no reason to act the way they did other than for the desire to prevent Appellee from using the 

Leaseholds. 1 CR 459, ¶ 10-12. As a result, the trial court properly concluded that Appellee’s 

forced abandonment of the Second Floor Leasehold was a reasonable time after the lockout. 1 CR 

456, ¶ 27; 1 CR 460, ¶ 27.

Appellants thus trespassed onto Appellee’s real property when they changed the locks on 

the doors and purposely avoided giving Appellee notice and opportunity to receive a new key. 1 

CR 455, ¶ 9; 1 CR 456, ¶ 20-21. Trespass on real property “is an unauthorized entry upon the land 

of another and may occur when one enters—or causes something to enter—another’s 

property.” Lakeside Vill. Homeowners Ass'n, Inc. v. Belanger, 545 S.W.3d 15, 36 (Tex. App. 

2017), review denied (Sept. 8, 2017) citing to Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011). 
BRIEF OF APPELLEE Page 39 of 42

“To recover damages for trespass to real property, a plaintiff must prove that (1) the 

plaintiff owns or has a lawful right to possess real property, (2) the defendant entered the plaintiff’s 

land and the entry was physical, intentional, and voluntary, and (3) defendant’s trespass caused 

injury to the plaintiff.” Lakeside Vill. Homeowners Ass’n, 545 S.W. at 36, citing to Wilen v.

Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied).

Here, Appellee and Appellants had valid contracts for the Second Floor and First Floor 

leaseholds for office space and a healthcare business, respectively. 1 CR 459, ¶ 1. Thus, Appellee 

had the right to access and possess the leaseholds. Moreover, Appellants could not intentionally 

prohibit Appellee from entering the leaseholds. See TEX. PROP. CODE § 93.002(c), 1 CR 459, ¶ 

17. 

However, Appellants entered Appellee’s leaseholds without authorization, took Appellee’s 

possessions, and locked Appellee out. 1 CR 455, ¶ 7-9; 1 CR 456, ¶ 19-20. Further, Appellants 

knew that by preventing Appellee from entering the Second Floor and failing to provide a reason 

for their actions without any way to remedy the situation (1 CR 456-457, ¶ 29-31; 1 CR 458, ¶ 48-

49), Appellants caused unnecessary disruption and permanently prevented Appellee from using 

and enjoying the leaseholds. 1 CR 459, ¶ 8-12; 1 CR 460, ¶ 23-25 This trespass caused Appellee’s 

lost business revenue, wages, and use and enjoyment of the leaseholds. Id.; 1 CR 460, ¶ 20; 1 CR 

461, ¶ 35. Thus, Appellants are responsible to Appellee for trespassing on their property.

Moreover, the trial court properly held that Appellants committed conversion when 

Appellants wrongfully retained Appellee’s personal property. To prevail on a claim of conversion, 

a plaintiff must prove (1) he owned or had possession of the property; (2) the defendant unlawfully 

and without authorization assumed and exercised control over the property to the exclusion of, or 

inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the 
BRIEF OF APPELLEE Page 40 of 42

property; and (4) the defendant refused to return the property. See Scott Pelley P.C. v. Wynne, No. 

05–15–01560–CV, 2017 WL 3699823, at *11 (Tex. App.—Dallas Aug. 28, 2017, pet. denied). 

Here, Appellants wrongfully locked Appellee out of his leasehold despite knowing 

Appellee still had personal property in the leasehold at the time of lockout. 2 RR p. 16. Remaining 

items included, but are not limited to, three refrigerators, a copy machine, office furniture, and 

office supplies for the purposes of storage. 1 CR 455, ¶ 7. Following the lockout, Appellants then 

called the scrapyard to retrieve and dispose Appellee’s personal property despite Appellee orally 

telling Appellants he would come back to retrieve the property. 2 RR p. 29-31. Thus, the trial court 

properly found in favor of Appellee that Appellants committed conversion. See 1 CR 446-48.

CONCLUSION

The trial court’s Final Judgment should be upheld because the trial court properly found 

that Appellee did not breach the Second Floor or the First Floor Leases, that Appellants acted 

prematurely in violation of the First and Second Floor Leases as well as the Property Code, and 

that as a result of Appellants’ actions, Appellee lost personal property, wages, business earnings, 

patients, as well as reputation in the community. Thus, as the prevailing party, it is proper that 

Appellee should be awarded attorneys’ fees. 

PRAYER

For these reasons stated above, Appellee Mike Del Bosque D/B/A Injury and Rehab 

Center in Grand Prairie respectfully prays that the Court sustain its allegations of error and affirm 

the December 19, 2018 Final Judgment.

Respectfully submitted,

/s/ Tailim Song

Tailim Song

State Bar No. 00792845 
BRIEF OF APPELLEE Page 41 of 42

tsong@tailimsong.com

Tel: (214) 528-8400

Fax: (214) 528-8402

8111 Lyndon B. Johnson Fwy Suite 

480

Dallas, Texas 75251

ATTORNEY FOR APPELLEE

RULE 52.3(J) CERTIFICATION

I have reviewed the Brief of Appellee and concluded that every factual statement in the 

petition is supported by competent evidence included in the appendix or record.

/s/ Tailim Song

______________________________

Tailim Song

CERTIFICATE OF COMPLIANCE

I hereby certify that I prepared the foregoing brief using Microsoft Word 2019 software, a 

14-point Times New Roman font for all text and a 12-point Times New Roman font for any 

footnotes. According to that program’s word-count function, the sections covered by TRAP 

9.4(i)(1) contain 12,329 words, including footnotes.

/s/ Tailim Song

______________________________

Tailim Song

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief was delivered to the following 

party in accordance with the Texas Rules of Appellate Procedure on this 18th day of June 2019:

Bush Rudnicki Shelton, P.C.

Grant A. Bannen

State Bar No. 00793300

200 N. Mesquite St., Suite 200

Arlington, Texas 76011

Tel: (817) 274-5992

Fax: (817) 261-1671

ATTORNEYS FOR APPELLANT 
BRIEF OF APPELLEE Page 42 of 42

/s/ Tailim Song

______________________________

Tailim Song