Randall's Food and Drugs, L.P. v. Bill Patton D/B/A Linux Professional Group

Opinion issued August 21, 2008 In The Court of Appeals For The First District of Texas ____________ NO. 01-06-00821-CV ____________ RANDALL'S FOOD AND DRUGS, L.P., Appellant V. BILL PATTON d/b/a LINUX PROFESSIONAL GROUP, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 807,726 MEMORANDUM OPINION This landlord-tenant case arises from sublease of a shopping-center unit by appellant, Randall's Food & Drugs, L.P. (Randall's), as landlord, to Bill Patton and Brian Weldon d/b/a Linux Professional Group as tenant. (1) The case was tried to the court, which ruled in favor of appellee Patton, rendered a take-nothing judgment on Randall's' claims, and filed findings of fact and conclusions of law. In four issues, Randall's contends that (1) it conclusively established its right to prevail on its claim for breach of contract and was therefore entitled to attorney's fees as a matter of law, (2) an erroneous fact finding by the trial court resulted in reversible error, and (3) the trial court erred by rendering judgment in favor of a severed party. We reform the judgment and, as modified, we affirm. Facts and Procedural Background The parties signed the sublease agreement on July 1, 2002. The terms contemplated rental of the premises for a three-year lease term for use as a non-profit software-training center, with a monthly rental payment of $2,107.00, plus monthly charges for taxes, insurance and common area maintenance ("CAM"), and a ten-percent penalty for amounts not paid within five days of the due date. The agreement specified that Patton, as subtenant, subleased the premises from Randall's "upon the same terms, conditions, requirements and provisions as are set forth in the Master Lease," by which Randall's originally leased the premises on November 22, 1982, and further stated that the sublease agreement "incorporated . . . by reference" the entire master lease. The sublease listed eight "events of default," which included failing or refusing to pay rent, vacating or abandoning the premises, and "[a]ny event of default described in the Master Lease." In addition, the sublease referred to the master lease in paragraphs that addressed the lease term, minimum rent, late charges, and insurance. Patton's rights as subtenant were further "subject to all the terms and conditions of the Master Lease," pursuant to paragraph 4 of the sublease agreement. Though Patton requested a copy of the master lease in an attempt to clarify escalating CAM obligations, it is undisputed that he did not ever receive the requested copy. After a dispute arose over the escalating CAM obligations and Patton's complaints that he had to do his own maintenance despite the CAM fees, Patton notified Randall's of its intent to abandon the leased premises and abandoned the premises in March 2003. On May 29, 2003, Randall's issued a notice to Patton that (1) stated an outstanding balance due for unpaid rent and fees of $10,353.48, (2) demanded that the rental premises be vacated by May 29, 2003 lest a forcible-entry-and-detainer action be filed, and (3) notified of Randall's' intent "to file suit . . . to recover all rent and other amounts, including, but not limited to, attorney's fees due under the terms of the Sublease." When Patton did not comply by payment, Randall's filed this action for breach of contract. Randall's' live pleadings allege that Patton owed "a portion" of unpaid CAM charges for the months of October 2002 through February 2003. Randall's sought a money judgment for rent that it claimed was unpaid; unpaid CAM charges of $638.60 per month; unpaid delinquent charges; and the balance of rent due under the full lease term after Patton stopped making rental payments and abandoned the leased premises. Randall's also sought consequential damages related to recovering possession and to re-letting, renovating, and altering the premises, in addition to attorney's fees. Patton answered by a general denial and claimed offsets on the amounts allegedly due. (2) Randall's called Patton as its sole witness at the bench trial and relied on the following exhibits: the sublease signed by the parties, the May 29, 2003 notice issued by Randall's, and an unauthenticated computer printout that purported to compile monthly amounts due. Patton disputed the amounts due under Randall's' compilation, stating that certain arrearages had been corrected, but he agreed that he had made no payments after vacating the leased premises. Patton also stated that he "did not know" what CAM comprised and that his company had to carry its own insurance because "Randall's didn't do that" and that his company incurred between "$15,000 and $20,000" in expenses for repairs to bring the premises up to code so that insurance could be obtained. In response to his counsel's request, Patton read paragraph 3.3 of the sublease into evidence. This paragraph governed CAM and required payment of "subtenant's proportionate share of common area maintenance costs as described in section 10 of the initial lease [and] subtenant's proportionate share of taxes as described in [s]ection 11 of the initial lease." At this juncture, the trial court questioned Randall's' counsel about the absence of a copy of the master lease. When Randall's' counsel's only response was that paragraph 3.3 referred to the master lease and that paragraph 1 incorporated the master lease by reference, the trial court emphasized yet again a "need to see [either] paragraph 10 of the initial lease," or language in the sublease that duplicated that language, and remarked on an inability "to make factual determinations upon a lease that refers to a document that's not here," specifically, the master lease. After an unrecorded bench conference, Randall's "chose to go forward." Patton testified that the sublease was the only lease he received, that he had asked Randall's' headquarters to "delineate the CAM charges, what they were," because he "did not know," and that he ultimately notified Randall's' headquarters that "we were going to have to move out because the CAM charges were way above what we thought they would be." Patton stated that his firm had to do its own maintenance. Though the sublease refers to acceptance of the premises "AS IS, WHERE IS," by an added interlineation, Patton was not able to test whether systems were functioning because the premises had no electrical power. Patton described the condition of the premises when he took possession as follows: The interior doors were missing. The interior glass was missing. The ceiling tile was missing. The light fixtures had been removed, and naked wires were hanging down from the ceiling. This was not only in one room. This was in almost all the rooms. Water - there was [sic] some water pipes that were leaking that we fixed before we could move in. And the air conditioning on the top of the building was not working. At the close of the bench trial, the trial court took the case under advisement and asked that each party submit findings of fact and conclusions of law. The court later rendered a take-nothing judgment in favor of Patton and signed his proposed findings of fact and conclusions of law. Randall's filed a motion for new trial and a motion to modify, correct, or reform the judgment, which the trial court denied after a non-evidentiary hearing. (3) Standard of Review We review the trial court's conclusions of law independently to determine their correctness from the facts found. Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 792 (Tex. App.--Houston [1st Dist.] 2001, no pet.); see In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (stating that trial court's legal conclusions are not binding on appellate court and are reviewable de novo). Findings of fact in a case tried to the court have the same force and effect as a jury's verdict on questions and are reviewable for legal and factual sufficiency under the same standards that govern jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.--Houston [1st Dist.] 1999, no pet.). When, as here, the appellate record contains a complete reporter's record of the trial, the trial court's findings of fact are not conclusive, but are subject to the same legal and factual sufficiency challenges. Min, 991 S.W.2d at 500. As the party claiming breach of contract, Randall's had the burden of proof at trial and must demonstrate on appeal that the evidence conclusively established all vital facts in support of its claim. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In reviewing a legal-sufficiency challenge by the party who had the burden of proof at trial, we examine the entire record to determine if the proposition contrary to the jury's finding is established as a matter of law, and we will sustain the challenge only in that case. See id., 767 S.W.2d at 690; see also City of Keller v. Wilson, 168 S.W.3d 802, 810 & n.16 (Tex. 2005) (citing, among other cases, King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)) (listing four instances in which legal sufficiency challenge must be sustained, as follows: (1) complete absence of vital fact; (2) rules of law or evidence preclude according weight to only evidence offered to prove vital fact; (3) evidence offered to prove vital fact is no more than scintilla; and (4) evidence conclusively establishes opposite of vital fact). In applying the legal-sufficiency standard, we must credit evidence that supports the judgment if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827. Accordingly, we review the evidence in the light most favorable to the verdict, but disregard all contrary evidence that a reasonable jury could have disbelieved. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (citing City of Keller, 168 S.W.3d at 812). If the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of the trial judge, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. See City of Keller, 168 S.W.3d at 822. Breach of Contract and Attorney's Fees Randall's' first issue challenges the take-nothing judgment rendered on its claim that Patton breached the sublease contract. Randall's contends that it established its right to prevail as a matter of law and therefore contends, in its second issue, that it was also entitled to prevail on its request for attorney's fees. We disagree. A. Anticipatory Breach--Failure of Proof Randall's' pleadings allege that Patton breached the sublease contract and was liable for damages for the remaining lease term, in addition to other damages related to re-leasing and modifying the vacated premises for a new tenant. Texas courts recognize four possible causes of action by a landlord against a tenant who breaches a lease by abandoning the premises. Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997). The landlord may (1) maintain the lease and sue for rent as it becomes due; (2) treat the breach as an anticipatory repudiation, repossess, and sue for the present value of future rentals reduced by the reasonable cash market value of the property for the remainder of the lease term; (3) treat the breach as anticipatory, repossess, release the property, and sue the tenant for the difference between the contractual rent and the amount received from the new tenant; or (4) declare the lease forfeited (if the lease so provides) and relieve the tenant of liability for future rent. Id. Randall's' allegations in this case invoke the theory that Patton was liable for damages for anticipatory breach of the sublease under the second or third options outlined in Austin Hill Country Realty. See id. Regarding these two options, Austin Hill Country Realty overruled prior law and adopted the rule applied in most American jurisdictions by recognizing that a landlord has a duty to mitigate when a tenant abandons the leased premises and stops paying rent. Id., at 295-300. (4) This principle recognizes that a landlord who claims anticipatory breach has a duty to mitigate because the landlord's claim is contractual in nature. Id. at 300. The Legislature has codified the landlord's duty to mitigate as section 91.006 of the Property Code. See Tex. Prop. Code Ann. § 91.006 (Vernon 2007). Randall's' pleadings thus triggered a duty to mitigate the damages it sought. 1. Patton's Indebtedness Randall's reiterates on appeal its postjudgment contentions that the undisputed evidence conclusively establishes (1) by Patton's own testimony, that he did not pay any remaining amounts due under the three-year lease after abandoning the premises in March 2003 and (2) that Patton owed a total of $58,996.00 as "the basic monthly rental amount of $2107 per month for 28 months," with one month's rental credited for Patton's security deposit. (5) Randall's emphasizes that Patton acknowledged that he did not make any monthly rental payments after March 2003, and that he signed and received a copy of the sublease. (6) As the trial court emphasized in response to similar contentions, however, Patton's trial testimony shows that he disputed the amounts that Randall's claimed he owed, that he "did not know" the CAM charges, and that he was not certain whether his claimed arrearages had been corrected. Referring specifically to Randall's' third exhibit, a purported computerized printout of rental amounts due, the trial court observed that Randall's did not substantiate the authenticity of the document at trial. Having neither authenticated the document nor explained its contents, Randall's never established Patton's indebtedness. In addition, the trial court reiterated the failure of proof resulting from Randall's' failure to provide a copy of the master lease that had been incorporated by reference into the sublease and with which Patton was required to comply. Without evidence of the master lease or its contents, the trial court could not determine what effect, if any, that lease had on Randall's' claims or Patton's defenses. Specifically regarding the issue of default, though the sublease listed eight instances that constituted default, including abandonment and failure to pay rent, the sublease further specified that any event of default listed in the master lease would constitute a default. Without the master lease in evidence, the trial court had no means of determining the extent of any default, in particular a default relating to indebtedness. For the same reason, the trial court was not able to determine Patton's compliance with the terms of the master lease, to which he was bound by the express terms of the sublease. Accordingly, we agree with the trial court's conclusion that Randall's did not establish the threshold issue of Patton's indebtedness. Having failed to provide competent evidence of Patton's indebtedness to controvert Patton's assertions that he could not verify what he owed, Randall's failed to carry its evidentiary burden of establishing a crucial element of its case. We therefore hold that the evidence is legally sufficient to support the trial court's failure to find in favor of Randall's on its claim that Patton anticipatorily breached its contract with Randall's. We overrule Randall's' first issue. B. Attorney's Fees In its second issue, Randall's contends that it conclusively established its right to attorney's fees and the amount of those fees. A party whose claims are premised on an oral or written contract may recover reasonable attorney's fees and costs. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). Under well-settled law, a party must prevail to recover attorney's fees pursuant to chapter 38. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); Ryan v. Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). Randall's did not prevail and therefore may not recover attorney's fees. We overrule Randall's' second issue. Challenges to Fact Findings Randall's' third issue challenges several of the trial court's findings of fact. A. Randall's' Duty to Mitigate Consistent with its statutorily imposed duty to mitigate and its pleadings seeking recovery for anticipatory breach, Randall's also had to prove the present value of the future rentals under the unexpired term of the lease, reduced by either the reasonable value of re-renting the leased premises or the rent paid by any new tenant. Austin Hill Country Realty, 948 S.W.2d at 300; Marshall v. Telecomm. Specialists, Inc., 806 S.W.2d 904, 907 (Tex. App.--Houston [1st Dist.] 1991, no writ); see also Crabtree v. Southmark Commercial Mgmt., 704 S.W.2d 478, 480 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) (limiting damages sought by landlord who treated tenant's conduct as anticipatory breach to recovery of present value of rentals that accrue, reduced by reasonable cash-market value of unexpired term of lease); Speedee Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex. App.--Amarillo 1983, no writ) (holding that landlord who treated tenant's conduct as anticipatory breach could recover contractual rental reduced by amount received from new tenant). Randall's' pleadings sought recovery of consequential damages for expenses incurred in re-leasing, renovating and altering the premises for the new tenant. (7) The amount of damages that Randall's avoided by re-leasing the premises would, therefore, necessarily reduce any recovery against Patton. See Austin Hill Country Realty, 948 S.W.2d at 299. Randall's' having contemplated re-leasing the premises after Patton's anticipatory breach provided some basis from which Randall's could prove "the reasonable value of re-renting the leased premises." See id., 948 S.W.2d at 300; Speedee Mart, 664 S.W.2d at 177. Yet, Randall's presented no evidence of either the rent that a new tenant was paying or the reasonable value of the re-leasing of the premises contemplated by its pleadings, and nothing in the record provides a basis for determining either of those values. Even if we were to assume that the $2,107 per month rental stated in the sublease represents the present value of the 28 months of future rentals remaining under the lease, Randall's failed to satisfy its burden to demonstrate either the rent that a new tenant was paying or the reasonable value of the re-leasing, in keeping with its duty to mitigate. Tex. Prop. Code Ann. § 91.006; Austin Hill Country Realty, 948 S.W.2d at 300. B. Randall's' Failure of Proof In addition, Randall's challenges the fourth finding of fact, which recites that Randall's "did not call any witnesses to present testimony in support of its claims," and the eighth finding, which also relates to Randall's' failure of proof. Regarding the fourth finding, Randall's protests that it presented Patton as a witness and that it was entitled to prove its case through him. We agree. But Randall's did not prove its case, as held above. The record reflects that the trial court signed the findings of fact before conducting the hearing on Randall's' postjudgment motions. The reporter's record of the hearing on those motions contains the following colloquy between counsel for Randall's and the trial court: COUNSEL: [W]hen I received the Judgment and . . . the Findings of Fact and Conclusions of Law, the only thing that I can conclude, Judge . . . is that the Court expressed during the trial that it had some concern about the fact that this was a sublease and there was no initial lease that was submitted into evidence. We took a break, and we talked about that. I chose to go forward. THE COURT: With no witnesses, either, except you called the defendant, presented no witnesses. As the ensuing discussion between counsel and the trial court further reflects, the trial court recounted in detail the failure of proof that arose from (1) lack of the master lease and (2) lack of evidentiary authentication for the exhibits on which Randall's relied. The record thus reflects that the trial court acknowledged Randall's' having called Patton as a witness, but that Randall's "did not call any witnesses to present testimony in support of its claims," as the fourth finding of fact recites and, therefore, failed to present evidence to support its claim of anticipatory breach. The fourth finding of fact thus conforms to the record and was not error. The eighth finding of fact states that Randall's "did not offer any testimony" to support its compilation of the amounts it claimed were due. Randall's argues that its trial exhibits were admitted without objection and that they were properly authenticated by a business-records affidavit filed with Randall's' amended petition. Though Randall's purports to challenge the fact finding, its argument raises an implicit attack on an evidentiary ruling, as explained below. The trial court's finding refers to the lack of live testimony. As the court commented during the postjudgment hearing, ". . . [T]he only live testimony that [Randall's] had was [that Patton] didn't know how many payments he had made." Commenting further regarding the exhibits that Randall's offered, the trial court acknowledged having "reviewed them," but reiterated that Randall's nonetheless "did not have the original lease that the sublease referred to repeatedly . . . to explain terms of that sublease. . . . And I warned you at the time [that] there is no explanation . . . ." Regarding Randall's' compilation of arrearages, the trial court commented, You didn't have anybody testify that he owed this amount. You introduced, again without any supporting testimony, a piece of paper that had some amounts on it, but there was no explanation. Again[,] the defendant hadn't prepared it, so there was no explanation for that sheet, sir. Though Randall's asked during the same hearing that the evidence be reopened to consider its business-record affidavit and the master lease, the trial court denied that request, stating regarding the master lease, Sir, I asked you for that at the beginning and gave you a break to give me that at the beginning . . . . And you said that you chose to go on without the initial lease, . . . [I am] not going to grant that at this late date. . . . [I]t does present some type of harm . . . [to] add evidence at the end of the trial. In actuality, therefore, Randall's' challenge is to the trial court's refusal to reopen the evidence after trial. Rule 270 of the Rules of Civil Procedure permits reopening the evidence when this clearly appears necessary to the administration of justice. See Tex. R. Civ. P. 270 (authorizing trial courts to "permit additional evidence" except after jury has returned its verdict in jury trial); Saunders v. Lee, 180 S.W.3d 742, 745-46 (Tex. App.--Waco, 2005, no pet.). We review the trial court's ruling for abuse of discretion. Id. Reviewing the record has persuaded us that, in addition to seeking to remedy its evidentiary shortcomings, Randall's' arguments attempted to alter its pleadings and trial strategy, to Patton's prejudice. As in its postjudgment motions, Randall's no longer seeks compensatory damages and argues that, "Regardless of the CAM, taxes and insurance provisions of the contract, paragraph 3.1 of the Sublease unequivocally stated that Patton agreed to pay $2,107.00 per month from July 1, 2002 through June 30, 2005." Randall's has thus abandoned its request for allegedly unpaid CAM. In contrast to its pleadings, Randall's now seeks to recover only the minimum monthly rental due for the 28 months remaining in the lease term and asks that we render judgment in its favor for $58,996.00, on the ground that the trial court ignored undisputed facts and arbitrarily denied any recovery. As held above, Randall's sued Patton on the ground that he anticipatorily breached the sublease by abandoning the premises. A landlord whose tenant breaches the lease by abandoning the premises has four possible options. Austin Hill Country Realty, Inc., 948 S.W.2d at 300. Analysis of these options demonstrates that they are neither alternative nor cumulative. We have held that Randall's failed to prove its case under the anticipatory breach options stated in its pleadings. Under the two remaining options, Randall could (1) maintain the lease and sue for rent as it became due, or (2) declare the lease forfeited and relieve Patton of any future liability. See id. Randall's' litigation strategy forecloses either of the two remaining options. The first remaining option does not apply because Randall's seeks to recover all of the remaining rent at once, rather than as payments accrue, and has demonstrated an intent to lease the premises to a new tenant, with the resulting duty to mitigate its damages that we have addressed. See id. The second remaining option is likewise impermissible, given this litigation. Randall's' attempt to alter its trial theories and strategy comes too late not to prejudice Patton. See generally, Tex. R. Civ. P. 63 (governing amended pleadings at trial); Chapin & Chapin, Inc. v. Tex. Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992) (citing Hardin v. Hardin, 597 S.W.2d 347, 350-51 (Tex. 1980) (addressing prejudicial, substantive amendments that change nature of trial)). We hold that the trial court properly restricted Randall's to its pleadings, theories, and trial strategy and that the record reflects that the trial court's ninth finding of fact is correct. In the final portion of its third issue, Randall's argues that the trial court's second, fifth, and sixth conclusions of law are incorrect because the court's findings of fact are incorrect. Having rejected the latter contention, we hold that the challenged conclusions are not erroneous. We overrule Randall's' third issue. Judgment against Severed Party In its fourth issue, Randall's contends that the trial court committed reversible error that warrants either rendition in favor of Randall's or remand for a new trial because the judgment grants relief to Brian Weldon, who was initially a plaintiff with Patton and the Linux Professional Group, but whom the trial court ordered severed after Weldon filed a petition in bankruptcy. We disagree. The judgment recites that the trial court found in favor of "Defendants, Bill Patton, Bryan H. Weldon and Linux Professional Group" on Randall's' claim for breach of contract. Yet, the trial court's findings of fact and conclusions of law refer only to Patton. During the hearing on Randall's' postjudgment motions, Randall's' counsel alerted the trial court that its final judgment included Weldon, despite his having been severed. The trial court confirmed that the judgment was indeed incorrect and offered to "conform the judgment to what my findings are. I don't have a problem with doing that." Before adjourning the proceedings, the trial court restated its offer to "conform that judgment." Yet the record before us does not show that a request was ever made. As the trial court recognized in offering to conform the judgment to the court's findings, which do not refer at all to Weldon, "findings of fact made pursuant to Rules 297 and 298," as here, "control for appellate purposes" over findings recited in a judgment. See Tex. R. Civ. P. 299a; Guridi v. Waller, 98 S.W.3d 315, 317 (Tex. App.--Houston [1st Dist.] 2003, no pet.). "[T]he separately-filed findings of fact," which do not refer at all to Weldon, "control," see Guridi, 98 S.W.3d at 317, and also conform to the trial court's pronouncements in response to Randall's' trial-court complaint. Accordingly, there is no basis for reversal, whether by rendition or remand for trial. Because this Court may now do what the trial court was never asked to do, we reform the judgment below by deleting any reference to the claims of the severed party Weldon. We sustain Randall's' fourth issue to the extent that we reform the judgment of the trial court, but overrule Randall's' requested relief. Conclusion We overrule Randall's' issues except that we reform the judgment by deleting any reference to the claims of the severed party Weldon. We affirm the judgment of the trial court in all other respects. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. 1. We will refer to appellee as "Patton." Patton's full name is Frederick William Patton III. Patton d/b/a Linux Professional Group is the sole appellee in this cause. Weldon was initially a named defendant, but the trial court severed Randall's' claims against Weldon into a separate cause after he filed a voluntary Chapter 7 bankruptcy petition. 2. Patton also asserted a counterclaim, which the trial court refused to consider for failure to pay a filing fee. 3. During the hearing, Randall's moved to reopen the evidence to consider a business-records affidavit authenticating its three trial exhibits and also offered to submit the master lease. The trial court refused, and Randall's does not challenge the ruling on appeal. The comments of the trial court at the posttrial hearing show that Randall's had been offered an opportunity to interrupt the trial so that a copy of the master lease could be obtained, but elected to proceed without it. 4. The minority rule derives from a view of the tenant as the "owner" entitled to possess the premises under the full term of the lease and thus liable for the remainder of the lease term, despite abandoning the premises. See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 295-96 (Tex. 1997) (citing Reid v. Mut. of Omaha Ins. Co., 776 P.2d 896, 902, 905 (Utah 1989)). Under the minority rule, the landlord could recover rents periodically for the remainder of the lease term after a tenant abandoned the leased premises; the landlord had no duty to mitigate with respect to the leased premises. Id. at 296 (citing Gruman v. Investors Diversified Servs., 247 Minn. 502, 505-06, 78 N.W.2d 377, 379-80 (1956)). 5. Based on these contentions, Randall's has apparently abandoned some of the damages initially specified in its pleadings. We address the implications of this posture in our discussion of Randall's' third issue. 6. Relying on Davidow v. Inwood N. Prof'l Group, 747 S.W.2d 373, 375 1988), Randall's also argues on appeal that "the duty to pay rent is independent of other covenants in a lease" and that Patton had a duty to pay "minimum rent" that is "independent of any other covenants in the lease." Randall's thus contends that Patton had a continuing duty and, therefore, an obligation, to pay rent. We address the argument because Randall's' legal-sufficiency challenge fairly encompasses it, in that Randall's raises as a legal principle that it contends would vitiate the trial court's ruling in favor of Patton. See City of Keller v. Wilson, 168 S.W.3d 802, 810 & n.16 (Tex. 2005) (describing second instance in legal sufficiency challenge must be sustained as situation presented when rules of law or evidence preclude according weight to only evidence offered to prove vital fact). Randall's' contention is flawed for two reasons. The first reason is that Randall's did not establish either Patton's indebtedness or its own damages. Randall's' contention also misinterprets Davidow, in which the supreme court rejected the interdependency of the landlord's and tenant's covenants and held that "the tenant's obligation to pay rent and the landlord's implied warranty of suitability are . . . mutually dependent." (Emphasis added). Compare Davidow, 747 S.W.2d at 376, with id., 747 S.W.2d at 377. Davidow does not conflict with our disposition. 7. It is not clear from the record whether Randall's actually rented the premises to another tenant or merely contemplated renting them again.