AFFIRMED and Opinion Filed July 30, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00160-CV SKY INTERESTS CORP., Appellant V. ELLE MOISDON, Appellee On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-16-0782 

### MEMORANDUM OPINION Before Justices Schenck , Osborne, and Reichek Opinion by Justice Reichek In this appeal following a partial summary judgment and jury tr ial, Sky Interests Corp. asserts the trial court erred in (1) failing to award prejudgme nt interest on the amount awarded to it in the partial summary judgmen t, (2) misapplying Texas Prope rty Code Section 93.002, and (3) refusing to submit a proposed jury question on abandonment. Sk y Interests further contends the evidence is insufficient to support the jury’s award of damages for conversion. Elle Moisdon brings one cross-issue challengi ng the summary judgment granted in favor of Sky Interests on its claim for breach of contract. Moisdon also asserts a condition al cross-issue addressing prejudgment interest on her conversion award. For the reasons set forth below, we affirm the trial court’s judgment.–2– Background On May 14, 2013, Moisdon signed an agreement with Sky Interest s to lease a property in Rockwall, Texas for a period of five years. The property was t o be used as a restaurant. The lease agreement stated that any rent payment made after the tenth day of the month would be assessed a 10% late payment fee. The lease further stated that if Moisdon defaulted in payment of the rent, or any part thereof, Sky Interests could terminate the lease an d “repossess and enjoy the leased property and any buildings and improvements situated thereon wi thout such a re-entry and repossession working a forfeiture of the rents to be paid.” Mo isdon agreed to “indemnify and save harmless [Sky Interests] from any loss arising from such defaul t, termination, and/or re-entry.” Moisdon also agreed that Sky Inte rests would not b e liable for any losses suffered to her property except to the extent such losses were “occasioned by the gross negligence or int entional acts of [Sky Interests].” Moisdon officially opened her restaurant in January 2014. Acc ording to Moisdon, construction occurring in front of the premises made it difficu lt for her to attract business. In August 2014, Moisdon did not tender a check for her rent until the 11th day of the month, one day after the late fees accrued. The c heck was later returned for insufficient funds. On August 21, Moisdon arrived at the restaurant to discover sh e had been locked out. The notice posted to the door stated t hat if Moisdon paid the Augus t rent, late fees, a nd a lock-out fee, she could obtain the new keys to the premises from the property manager, Teresa Dickerson. Moisdon went to Sky Interests’s offices, which were in the same building as the restaurant, to speak to Dickerson. Moisdon stated Dickerson walked her into t he restaurant and allowed her to remove her personal laptop, a reservation book, and customer li sts. Moisdon testified she later called Dickerson and asked how she could get the remainder of h er belongings and was told the only way she could re-enter the premises was to pay the full am ount owed including the fees.–3– On September 9, Moisdon left a letter outside the door to Sky Interests’s offices demanding the return of her personal prope rty including all equipment, ki tchen items, furniture, decorative items, and inventory. When she received no response, she hired an attorney who sent a letter to Sky Interests on September 11. This letter stated that one of Moisdon’s primary concerns was the safekeeping of her equipment and inventory. The letter further stated that if Sky Interests or its agents began removing Moisdon’s property from the premises, the y would take action to protect her rights. Moisdon stated she called Sky Interests numerous times in Sept ember and October to resolve their issues. On October 14, Moisdon went to the resta urant and looked in the windows to make sure her things were still there. She stated she noticed items were missing, such as some of the wine from the wine rack. Four days later, Moisdon was informed by friends that her prope rty at the restaurant was going to be sold. Moisdon went to the restaurant that night an d saw a sign on the door that said “Blow Out Sale.” The next day, she went to the police to tell them her things were being improperly sold. She left after being told it was a civil matt er and there was nothing they could do. Moisdon then went to the restaur ant and found the sale occurrin g. She went in the doorway and saw her property be ing sold by S ky Interests’s employees. Moisdon said she approached one of the employees and asked him why they were selling her things instead of allowing her to pay the rent. She asserts the employee responded, “[W]e’ve done th is before.” The employee called the police after he saw Moisdon take some of the property and p ut it into her car. The police came and Moisdon was issued a criminal trespass warning. On October 28, Dickerso n sent Moisdon a lette r stating they wer e terminating her lease as of October 31, 2014. On the day the lease was supposed to be t erminated, however, a new property–4– manager, Monica Rico, sent Moisdon an email attaching a Novembe r rent invoice. Moisdon responded that Dickerson told her the lease was terminated and asked her if she was supposed to do anything further. Rico replie d she believed Moisdon had done everything she was supposed to do and she would let her know if that was not correct. On November 20 and 21, Moisdon’s attorney and Rico exchanged em ails in which the attorney demanded Sky Interests turn over all Moisdon’s persona l property that had not been sold. Rico responded it was their position that Moisdon had already r etrieved her personal belongings. Rico requested a list of what pr operty Moisdon believed was sti ll on the premises that belonged to her stating, “if we don’t know w hat she is expecting to pick up there is no reason for her to be there and she will be turned away.” M oisdon then sent Rico an email stating she had not had access to the restaurant since the lockout and she needed, among other th ings, her business paperwork for her taxes and work-related oblig ations. Moisdon sent her a lis t of items still on the premises including things such as letters f rom her deceased father, medi cal records, passports, and jewelry. On November 26, Moisdon emailed R ico asking when she could pick up her things. Rico responded that they couldn’t “have these things sitting in our hallway for very long.” She told Moisdon to pick up her things tha t day or the following Monday. Moisdon testified that, when she went to collect her belongings, they only gave her one box of p apers. Although she said she could see more of her property still inside the restaurant, they woul d not let her have any of it. After going through the box, Moisdon emailed Rico again to say the bo x did not contain any of her papers or personal items from her desk. She stated the desk “h as all my important documents and my customer receipts that I have to have for taxes and the only other place to retrieve that is on my computers that you also kept.” Moisdon later learned that S ky Interests sold the remaining items left on the premises, including kitchen equipment and fur niture, to a restaurant supply–5– company. Any of Moisdon’s property not sold was thrown in a du mpster obtained for the purpose of renovating the premises for a new lessee. Moisdon brought this suit alleging claims for wrongful lockout and removal of property under section 93.002 of the Texas P roperty Code, conversion, th eft, breach of contract, and civil conspiracy. 1 Sky Interests filed a counterclaim for breach of contract and moved for summary judgment on its contract claim, s eeking to recover lost rent, t he cost of improvements to the premises necessary to secure a replacement tenant, and attorney ’s fees. The company additionally moved for summary judgment on Mo isdon’s claims. The trial cour t granted summary judgment in favor of Sky Interests on its contract claim and awarded it $21,600 for lost rent, $34,606.01 in re-leasing costs, and $12,637.50 in a ttorney’s fees for a total amount of $68,843.51. The trial court also granted summary judgment in favor of Sky Interests on all Moisdon’s claims except for conversion and violations of the T exas Property Code. These cl aims were tried to a jury. Prior to trial, Sky Interests submitted proposed jury questions , including a question asking if Moisdon had abandoned the pe rsonal property remaining in the leased premises under section 93.002 of the property code. The trial court ultimately refuse d to have the jury make a determination on abandonment, c oncluding there was no evidence to raise a fact question on that issue. The court’s charge included only three questions: the v alue of the property disposed of by Sky Interests, whether Sky Interests converted Moisdon’s person al property on or after August 21, 2014, and what sum of money would compensate Moisdon for her da mages resulting from the conversion of her property. The valuation question presumed Sk y Interests’s liability under the property code.

1 In addition to naming Sky Interests as a defendant, Moisdon al so named the company’s owner, Michael P. Swiercinsky, and his children who worked for the company, Joshu a and Nikki Swiercinsky. All claims made against the Swiercinskys individually were resolved against Moisdon by summary judgment and she does not appeal that ruling. Accordingly, we do not discuss the claims made against those parties.–6– After hearing the evidence, the j ury valued Moisdon’s property at $72,613.98. The jury further found in favor of Mois don on her conversion claim and c oncluded the amount of her damages under that cause of action was $75,000. Moisdon electe d to recover under her property code cause of action which allowed her to additionally recover one month’s rent and attorney’s fees. The trial court’s final judgment awarded Sky Interests $68,84 3.51 pursuant to the earlier partial summary judgment and $1,735.12 in postjudgment interest for a total amount of $70,578.63. Moisdon was awarded the $72,613.98 valuation for h er lost property plus $8,471.63 in prejudgment interest. Moisdon was also awarded the sum of $ 2,150 for one month’s rent pursuant to section 93.002(g)(2) of the Texas Property Code and attorney’s fees of $16,000, for a total amount of $99,235.61. This amount was offset by the amou nt awarded to Sky Interests, leaving Moisdon a net recovery of $28,656.98. Sky Interests filed a motion to m odify the judgment asking the trial court to award it equitable prejudgment interest on its breach of contract damage s because the court had awarded prejudgment interest to Moisdon. In addition, Sky Interests fi led a motion for partial new trial asserting several grounds, including the trial court’s failure to submit the requested jury question on abandonment. The trial court denied both the motion to modi fy and the motion for partial new trial. Moisdon did not file any postjudgment motions. Sky Int erests filed this appeal of the trial court’s final judgment and M oisdon filed a cross-appeal.–7– Analysis I. Prejudgment Interest In its first issue, Sky Interests contends the trial court err ed in denying its request to modify the final judgment to award it p rejudgment interest on its brea ch of contract damages. Under Texas law, prejudgment interest is an additional damage award for the loss of use of money between the time of accrual of the claim and the date of the judgment. Johnson & Higgins of Tex. v. Kenneco Energy, Inc. , 962 S.W.2d 507, 528 (Tex. 1998). Prejudgment interest is awa rded to fully compensate the injured party, not punish the defendant. Brainard v. Trinity Universal Ins. Co. , 216 S.W.3d 809, 812 (Tex. 2006). There is no statute providi ng for an award of prejudgment interest on a breach of contract claim, but such interest may b e recovered under common law principles of equity. See Jones v. R.O. Pomroy Equip. Rental, Inc., 438 S.W.3d 125, 132 (Tex. App.—Eastland 2014, pet. denied). W here no statut e controls, a s here, the decisi on of whether to award such interest is left to the sound discretion of the tria l court, which should rely upon equitable principles and public policy in making its decision. Henry v. Masson , 453 S.W.3d 43, 49 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Sky Interests does not challenge the award of prejudgment inte rest to Moisdon. The company argues only that the trial court erred in not also awar ding prejudgment on its recovery. Sky Interests did not request pre judgment interest in its motio n for summary judgment. The request was made only after final judgment was rendered. In it s motion to modify the judgment, Sky Interests argued it would be inequitable to award Moisdon p rejudgment interest while refusing to grant Sky Interests the same relief. As stated above, the purpose of prejudgment interest is to com pensate the claimant for the loss of use of money between the time of accrual of the claim a nd the date of the judgment.
Kenneco , 962 S.W.2d at 528. The jury in this case concluded that Sky Interests wrongfully–8– exercised control over Moisdon’ s personal property from the tim e the company’s breach of contract claim accrued until the date of the judgment. The jur y further concluded this property had a value of $72,613.98, which was over $16,000 more than Sky Interests’s breach of contract damages. Accordingly, although Sky Interests may have lost the use of the rental income, it improperly maintained control ove r Moisdon’s property, which ha d greater value, over the same time period. Moreover, the prope rty Sky Interests refused to a llow Moisdon to access was the equipment she had been using to g enerate income to pay her rent . Based on the record before us, we conclude the trial court did not abuse its discretion in ref using to award Sky Interests equitable prejudgment interest. We resolve the company’s first issue aga inst it. II. Applicability of Section 93.002 of the Texas Property Code In its second issue, Sky Interests contends the trial court er red in concluding section 93.002 of the Texas Property Code applied to Moisdon’s claims because the terms of the parties’ lease superseded the statute. Section 93.002 addresses the interrupt ion of utilities, removal of property, and exclusion of a commercial tenant. T EX

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. C ODE A NN . § 93.002. Under section 93.002(c), a landlord may change the door locks of a tenant who is delinqu ent in paying rent. Id . § 93.002(c). The landlord may not, however, remove any of the tenant’s prope rty unless the tenant has abandoned the premises. Id . § 93.002(e). Furthermore, even if the tenant has abandoned t he premises, the landlord must store the tenant’s property, and ma y not dispose of it, unless he delivers by certified mail to the tenant’s last known address, a notice stating disposal of the property may occur if the tenant does not claim the property within sixty da ys. Id . These statutory provisions may be superseded by a lease to the extent the lease provisions conflict with the statute. Id . § 93.002(h). Sky Interests contends secti on 93.002 does not apply in this c ase because the statute conflicts with paragraphs 12 and 13 of the lease and, under sec tion 93.002(h), the lease provisions–9– control. Id . The construction of an unambiguous lease is a question of la w determined de novo. Samson Expl., LLC v. T.S. Reed Props., Inc. , 521 S.W.3d 766, 787 (Tex. 2017); Saltworks Ventures, Inc. v. Residences at Spoke, LLC , No. 03-16-00711-CV, 2018 WL 2248274, *7 (Tex. App.—Austin May 17, 2018, no pet.)(mem. op.). In construing a contract, we may not rewrite or add to its language. Am. Mfrs. Mut. Ins. Co. v. Schaefer , 124 S.W.3d 154, 162 (Tex. 2003). Statutory construction is also a question of law we review de n ovo. State v. Shumake , 199 S.W.3d 279, 284 (Tex. 2006). Paragraph 12 of the lease stat es that, upon default by Moisdon, Sky Interests had the right to terminate the lease and re-ent er and repossess the premises and any improvements thereon. The paragraph further states Moisdon will “indemnify and save harml ess [Sky Interests] from any loss arising from such default, ter mination and/or re-entry.” This provision does not address Moisdon’s personal property or Sky Interests’s rights with respect to it. Moisdon’s claimed losses did not arise out of her default, the t ermination of the lease, or the company’s re-entry of the premises. It arose from the company’s sale and disposal of her personal prop erty. Because paragraph 12 does not mention personal property, le t alone authorize Sky Interest s to take any action with respect to Moisdon’s personal property, we see nothing in the paragraph th at conflicts with the requirements of section 93.002. In contrast, Paragraph 13 specifically addresses Sky Interests ’s liability with respect to Moisdon’s personal property. The paragraph states that Sky Int erests is not liable for any losses suffered to Moisdon’s property unless such losses were occasion ed by Sky Interests’s gross negligence or intentional acts. Sky Interests does not provide any argument to show how this provision conflicts with sect ion 93.002. Although Sky Interest s contends there is no finding that its sale and disposal of Moisdon’ s property was intentional, th e company neither requested such a–10– finding nor cites any law that such a finding was required. Fu rthermore, the company does not explain how its actions could have been anything other than int entional. We conclude there is no conflict between the provisions sectio n 93.002 and the terms of the lease. We further conclude section 93.002 controls Moisdon ’s claim for wrongful sale and disposal of her property. We re solve Sky Interests second issu e against it. III. Jury Question In its third issue, Sky Interests contends the trial court err ed in refusing to submit its requested jury question and instruction on abandonment. The tr ial court has a nondiscretionary directive to submit requested que stions to the jury if the plea dings and any evidence support them.
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refu se to submit an issue, however, if no evidence exists to warrant its submission. Id . Furthermore, under Texas Rule of Civil Procedure 278, the failure to submit a question is not gr ounds for reversal unless the complaining party submitted a proposed question in writing usin g substantially correct wording.
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. P. 278. A requested question or instruction that is affirmativ ely incorrect is not “substantially correct ” under the rule. See Placencio v. Allied Indus. Int’l , 724 S.W.2d 20, 21 (Tex. 1987). In this case Sky Interests requested the submission of the fol lowing jury question: “After August 21, 2014, did Plaintiff abandon the Property that remain ed on the Premises?” This question was accompanied by an instruction that defined the circumstance s under which an owner may be deemed to have abandoned personal property. Sky Interests argu es the issue of abandonment was a threshold matter to be determined by the jury before liabilit y could be imposed on it under section 93.002(e). The company contends, therefore, the trial court’s failure to submit the question is reversible error. The company’s argument lacks merit for two r easons.–11– First, the proposed question submitted by Sky Interests asked the jury to determine whether Moisdon had abandoned her persona l property. Under section 93. 002(e), a landlord may remove a tenant’s personal property on ly if the tenant has abandoned t he premises . T EX

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. § 93.002(e). A trial court’s refusal to submit an issue that i s affirmatively incorrect in its wording does not justify reversal. Id .; Baylor Univ. v. Coley , 221 S.W.3d 599, 607 (Tex. 2007) (Johnson, J., concurring). Second, there is no evidence in the record to show that Moisdo n abandoned the premises. The trial court did not err, the refore, in refusing to submit t his issue to the jury. Elbaor , 845 S.W.2d at 243. Indeed, Sky Interests concedes there was no aba ndonment stating “it is undisputed that Moisdon was locked out of the premises and did not abandon the premises.” Sky Interests confusingly argues that, although it requested a question on ab andonment, because the undisputed evidence shows there was no abandonment, it cannot be held liab le under section 93.002(e). Sky Interests appears to argue t hat section 93.002(e) applies only to abandoned premises and, because Moisdon did not abandon the premises, the section does not appl y to the facts of this case. Sky Interests misreads the statute. Section 93.002(e) states that a landlord may remove and store the property of a tenant if the property remains on premises the tenant has abandoned. T EX

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. C ODE A NN . § 93.002(e). The landlord may then dispose of the property after sixty days if the tenant has been properly notified of the landlord’s intent to do so. Id . If a landlord violates the section, the tenant may recover actual damages, one mont h’s rent or $500, whichever is greater, reasonable attorney’s fees, and court costs, less any delinquent rent or other sums for whi ch the tenant is liable. Id . § 93.002(g). Based on the clear langu age of the section, a landl ord may remove a tenant’s property from leased premises only if the premises have been abandoned. See Eun Bok Lee v. Ho Chang
Lee , 411 S.W.3d 95, 109–10 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Abandonment is not–12– a prerequisite to application of the section; it is a prerequis ite to the landlord’s ability to remove the tenant’s personal property. A landlord’s removal of a tena nt’s personal property from premises that have not been a bandoned is a violati on of the section enti tling the tenant to recover damages. Because there was no evidence to suggest Moisdon had abandoned the premises, there was no fact issue on abandonment for the jury to resolve, and Sky Interests was liable for violating section 93.002 by removing and disposing of Moisdon’s personal property . We resolve Sky Interests’s third issue against it. IV. Conversion Damages In its fourth issue, Sky Interests contends the evidence is ins ufficient to support the jury’s award of damages for conversion. Following the jury’s verdict, Moisdon elected to recover under her property code claim rather than her conversion claim. Sky Interests does not assert any error with respect to the damages awar ded pursuant to the property co de claim. Its arguments are directed solely and specifically at the conversion award and, a t the conclusion of the issue, the company requests only that this Court “reverse the jury’s findi ngs concerning conversion and remand this case for a new trial on the conversion claim.” Bec ause we have concluded Sky Interests was properly held liable for violations of the Texas Property Code, a nd Moisdon elected to recover under that theory alone, it is unnecessary for us to address Sky Interests’s challenge to the conversion award. See T EX

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. P. 47.1. (opinion must address issues “necessary to final disposition of the appeal”).
V. Cross-Issues In her first cross-issue, Mois don contends the trial court’s j udgment “should reflect only the jury award.” Moisdon argue s that, if this Court upholds he r recovery under the Texas Property Code, we should “also find the co mmercial lease was terminated by Moisdon at the time of Sky Interests Corp.’s violation of t he Texas Property Code and Sky Interests should take nothing on its–13– counterclaim” for breach of c ontract. Although Moisdon is effe ctively challenging the partial summary judgment rendered by the trial court, Moisdon cites no authority and makes no reference to the summary judgment motions, arguments, evidence, or ruling . Indeed, Moisdon does not specify what action the trial court took that she contends was erroneous. A party’s brief must contain a clear and concise argument for the contention made, w ith appropriate citations to authorities and the record, or the issue is waived on appeal. In re N.E.B. 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.). In addition, although section 93.002 allows a tenant to termin ate her lease when a landlord violates a provision of the section, Moisdon points to no evide nce that she actually did so. Moisdon asks this Court to find she terminated the lease at the time of the violation, but termination of the lease is not automatic under the statute. The language of the statute shows the contrary as it gives the tenant the option to either recover possession of the premi ses or terminate the lease. T EX

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. C ODE A NN . § 93.002(g)(1). Whether termina tion occurred, therefore, is a question of fact. This Court has no authority to make findings of fact. Bellefonte Underwriters Ins. Co. v. Brown , 704 S.W.2d 742, 745 (Tex. 1986). Findings of fact are the excl usive province of the jury and/or trial court. Id . at 744 In the alternative, Moisdon asks u s allow her to terminate the lease now and “foreclose [Sky Interests’s] judgment for breach of contract.” She cites no authority for the proposition that she may retroactively terminate her lease to defeat Sky Interes ts’s recovery. We resolve this issue against Moisdon. Moisdon’s second cross-issue ad dresses her conversion award an d was brought conditionally in the event this Court reversed her award under the property code. Because we have upheld the property code award, it is unnecessary for us to add ress Moisdon’s second cross-issue.–14– Based on the foregoing, we affirm t he trial court’s judgment.

180160F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SKY INTERESTS CORP., Appellant

No. 05-18-00160-CV V. ELLE MOISDON, Appellee On Appeal from the 382nd Judicial District Court, Rockwall County, Texas Trial Court Cause No. 1-16-0782. Opinion delivered by Justice Reichek. Justices Schenck and Os borne participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered July 30, 2019.