Marinecorp International, Ltd. v. the Chopper Group, LLC and Outlaw Country, LLC ( 2015 )


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  •                                                                                          ACCEPTED
    01-14-00707-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    11/30/2015 9:41:21 AM
    CHRISTOPHER PRINE
    CLERK
    IN THE COURT OF APPEALS
    FOR THE FIRST JUDICIAL DISTRICT OF TEXAS
    AT HOUSTON, TEXAS                          FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    NO. 01-14-00707-CV           11/30/2015 9:41:21 AM
    CHRISTOPHER A. PRINE
    Clerk
    MARINECORP INTERNATIONAL, LTD.,
    Appellant,
    v.
    THE CHOPPER GROUP, LLC AND OUTLAW COUNTRY, LLC
    Appellees.
    On Appeal From the 80TH Judicial District Court,
    Harris County, Texas, Cause No. 2012-23983
    APPELLEES, THE CHOPPER GROUP, LLC, BACKWOODS COUNTRY
    CLUB, LLC, TONY MILLER AND KYLE TONES’ BRIEF
    THE AKERS FIRM                             THE COCHELL LAW FIRM, P.C.
    Brock C. Akers                             Stephen R. Cochell
    State Bar No.: 00953250                    State Bar No. 24044255
    3401 Allen Parkway, Suite 101              555 W. Loop S., Suite 200
    Houston, Texas 77019                       Bellaire, Texas 77401
    Telephone: (713) 877-2500                  Telephone: (832) 767-1065
    Facsimile: (713) 583-8662                  Facsimile: (832) 767-1686
    bca@akersfirm.com                          srcochell@gmail.com
    ATTORNEY FOR APPELLEES,                    ATTORNEY FOR APPELLEE,
    THE CHOPPER GROUP, LLC.,                   KYLE TONES
    BACKWOODS COUNTRY CLUB,
    LLC. AND TONY MILLER
    ORAL ARGUMENT NOT REQUESTED PURSUANT TO TEX. R. APP. P.
    39.1 and 39.7
    TABLE OF CONTENTS
    TABLE OF CONTENTS .......................................................................................... ii
    INDEX OF AUTHORITIES................................................................................... vii
    STATEMENT REGARDING ORAL ARGUMENT ............................................ xii
    ISSUES PRESENTED........................................................................................... xiii
    ISSUE ONE
    Chopper and Outlaw Gave Marinecorp Written Notice of Each
    Default and Thirty Days to Cure Each of its Breaches of the
    Lease. The Lease Agreements Did Not Require Written Notice
    of Marinecorp’s Defaults by Certified Mail, Return Receipt
    Requested.
    ISSUE TWO
    After Marinecorp Breached the Implied Warranty of Suitability
    and Committed Deceptive Trade Practices in Regard to the
    Parking-Lot Lights, Leaking Roof, Electrical Wiring, and Air
    Conditioning, Chopper and Outlaw Country Lawfully Tried to
    Protect Their Investment by Continuing Under the Leases and
    Asking Marinecorp to Fix the Problems. The Griffin Rule is
    Inapplicable Under the Facts of This Case.
    ISSUE THREE
    Sufficient Evidence Supported the Jury’s Finding that
    Marinecorp Failed to Mitigate its Alleged Damages.
    ISSUE FOUR
    Sufficient Evidence Supported the Jury’s Verdict. The Jury
    was not Required to Conclude that Outlaw Country Delayed its
    Own Opening.
    ii
    ISSUE FIVE
    The Trial Court Correctly Rejected Marinecorp’s Proposed Jury
    Question Concerning Whether Outlaw Country Failed to
    Mitigate its Damages Because Neither the Law nor Evidence
    Supported such a Question in This Case.
    ISSUES SIX THROUGH EIGHT
    Issues Six Through Eight Should be Overruled Because
    Sufficient Evidence Showed Marinecorp Committed Deceptive
    Trade Practices and Separately Breached its Written Lease
    Agreements with Chopper and Outlaw. The record does not
    show Chopper and Outlaw Country attempted to bring a
    Property Code wrongful-eviction claim under the DTPA.
    ISSUE NINE
    The Trial Court’s Modified Final Judgment Awarding
    Prejudgment Interest Should be Affirmed Because Issue Nine is
    Unpreserved for Appellate Review.
    ISSUE TEN
    On Appeal, Marinecorp has not Shown Entitlement to Damages
    for Alleged Breach of Guaranty.
    ISSUE ELEVEN
    The Trial Court did not Award Cumulative Damages for DTPA
    Violations and Breach of Contract.
    ISSUE TWELVE
    On Appeal, Marinecorp has not Shown Entitlement to Damages
    for Alleged Breach of a Promissory Note.
    iii
    ISSUE THIRTEEN
    Legally and Factually Sufficient Evidence Supports the Trial
    Court’s Judgment Awarding Actual Damages.
    STATEMENT OF FACTS ........................................................................................1
    A.      Tony Miller’s Testimony and Choppers Sports Bar &
    Grill........................................................................................................1
    B.      The Second Lease – Outlaw Country.................................................... 5
    C.      The Unrepaired Roof at Outlaw Country .............................................. 8
    D.      Marinecorp’s Failure to Timely Provide Electrical
    Hookups at Outlaw Country.................................................................. 9
    E.      Marinecorp’s Failure to Timely Provide the Sixty Tons
    of Air Conditioning .............................................................................11
    F.      Testimony of Realtor Tibbs: The Lockout and
    Marinecorp’s Use of Miller .................................................................13
    G.      Testimony of Investor Kyle Tones ......................................................16
    H.      Testimony of Marinecorp’s Property Manager Mike
    Mirza....................................................................................................17
    I.      Testimony of Marinecorp’s Corporate Representative Ed
    Wolochin .............................................................................................21
    J.      The Re-Finance and Marinecorp’s Reluctance to Lease to
    Alcohol Vendors..................................................................................22
    K.      The Jury’s Verdict ...............................................................................22
    SUMMARY OF THE ARGUMENT ......................................................................23
    iv
    ARGUMENT AND AUTHORITIES ......................................................................24
    ISSUE ONE (RESTATED) .....................................................................................24
    A.      De Novo Standard of Review Applies to Contractual
    Notice Clause ......................................................................................26
    B.      Standard of Review for Legal and Factual Sufficiency ......................27
    C.      Chopper and Outlaw Country Satisfied the Notice Clause ................. 28
    ISSUE TWO (RESTATED) ....................................................................................32
    A.      Sufficient Evidence Supports the Jury’s Finding that
    Marinecorp Breached First ..................................................................34
    B.      Chopper and Outlaw Country were Allowed to Try to
    Protect their Investment by Working to Continue Under
    the Leases ............................................................................................34
    C.      Even under a Strict Contract Analysis, Jury Question
    Three was Proper because Griffin is inapplicable. ..............................41
    ISSUE THREE (RESTATED) ................................................................................44
    ISSUE FOUR (RESTATED) ...................................................................................46
    ISSUE FIVE (RESTATED) ....................................................................................48
    A.      Marinecorp cites no legal authority that a tenant has a
    duty to mitigate the landlord’s breach of the implied
    warranty of suitability especially before the landlord even
    commits the breach..............................................................................48
    ISSUES SIX THROUGH EIGHT (RESTATED) ...................................................51
    A.      Texas law recognizes that DTPA violations and breach of
    contract may arise in the context of a single case ...............................52
    v
    B.      Factually and legally sufficient evidence proved Chopper
    and Outlaw Country’s various DTPA claims and contract
    cause of action .....................................................................................53
    1.       Breach of Implied Warranty of Suitability ...............................57
    2.       Fraudulent Inducement .............................................................59
    3.       Unconscionable Course of Action ............................................60
    4.       Continued Unconscionable Course/Breach of
    Contract .....................................................................................61
    ISSUE NINE (RESTATED) ....................................................................................62
    ISSUE TEN (RESTATED)......................................................................................63
    ISSUE ELEVEN (RESTATED) ..............................................................................64
    ISSUE TWELVE (RESTATED) .............................................................................66
    ISSUE THIRTEEN (RESTATED) ..........................................................................67
    CONCLUSION & PRAYER ...................................................................................71
    CERTIFICATE OF COMPLIANCE .......................................................................73
    CERTIFICATE OF SERVICE ................................................................................74
    vi
    INDEX OF AUTHORITIES
    CASES
    ACS Investors, Inc. v. McLaughlin,
    
    943 S.W.2d 426
    (Tex. 1997) ................................................................................26
    Akin v. Santa Clara Land Co., Ltd.,
    
    34 S.W.3d 334
    (Tex. App.—San Antonio 2000, pet. denied)..............................30
    Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc.,
    
    948 S.W.2d 293
    (Tex.1997)........................................................................... 44, 45
    B&W Supply, Inc. v. Beckman,
    
    305 S.W.3d 10
    (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ...... 41, 42, 43
    Besteman v. Pitcock,
    
    272 S.W.3d 777
    (Tex. App.—Texarkana 2008, no pet.)......................................29
    Cain v. Bain,
    
    709 S.W.2d 175
    (Tex. 1986) ........................................... 27, 32, 34, 46, 48, 62, 71
    Chapman v. Abbot,
    
    251 S.W.3d 612
    (Tex. App.—Houston [1st Dist. 2007, no pet.) .................. 26, 27
    Cheung-Loon L.L.C. v. Cergon, Inc.,
    
    392 S.W.3d 738
    (Tex. App.—Dallas 2012, no pet.) ............................................30
    Church & Dwight Co. v. Huey,
    
    961 S.W.2d 560
    (Tex. App.—San Antonio 1997, pet. denied)............................53
    vii
    City of Keller v. Wilson,
    
    168 S.W.3d 802
    (Tex. 2005) ................................................. 27, 32, 46, 48, 62, 71
    Coker v. Coker,
    
    650 S.W.2d 391
    (Tex. 1983) ......................................................................... 26, 27
    Commercial Escrow Co. v. Rockport Rebel, Inc.,
    
    778 S.W.2d 532
    (Tex. App.—Corpus Christi 1989, writ denied) ........................60
    D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co.,
    
    300 S.W.3d 740
    (Tex. 2009) ......................................................................... 63, 66
    Davidow v. Inwood N. Prof'l Group—Phase I,
    
    747 S.W.2d 373
    (Tex. 1988) ....................................................... 35, 36, 38, 40, 57
    Doe v. Boys Clubs of Greater Dallas, Inc.,
    
    907 S.W.2d 472
    (Tex. 1995) ................................................................................53
    Drury Southwest, Inc. v. Louie Ledeaux #1, Inc.,
    
    350 S.W.3d 287
    (Tex. App.—San Antonio 2011, pet. denied)..................... 53, 59
    Gen. Land Office of State of Tex. v. OXY U.S.A., Inc.,
    
    789 S.W.2d 569
    (Tex. 1990) ................................................................................67
    Gober v. Wright,
    
    838 S.W.2d 794
    (Tex. App.—Houston [1st Dist.] 1992, writ denied).......... 38, 63
    GTE Mobilnet of S. Tex. v. Pascouet,
    
    61 S.W.3d 599
    (Tex. App.—Houston [14th Dist.] 2001, pet. denied) .................28
    viii
    Gym-N-I Playgrounds, Inc. v. Snider,
    
    220 S.W.3d 905
    (Tex. 2007) ......................................................................... 57, 58
    Heritage Res., Inc. v. NationsBank,
    
    939 S.W.2d 118
    (Tex. 1996) ................................................................................26
    Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., Inc.,
    
    341 S.W.3d 323
    (Tex. 2011) ..................................... 35, 36, 39, 40, 49, 52, 63, 68
    Jim Walters Homes, Inc. v. Valencia,
    
    690 S.W.2d 239
    (Tex. 1985) ................................................................................56
    Long Trusts v. Griffin,
    
    222 S.W.3d 412
    (Tex. 2006)(per curiam) .................................................... 35, 42
    Lyons v. Montgomery,
    
    701 S.W.2d 641
    (Tex. 1985 ..................................................................................26
    Meeker v. Tarrant Cty. Coll. Dist.,
    
    317 S.W.3d 754
    (Tex. App.—Fort Worth 2010, pet. denied) ..............................68
    Nguyen v. Woodley,
    
    273 S.W.3d 891
    (Tex. App.—Houston [14th Dist.] 2008, no pet.) .....................30
    Parts Indus. Corp. v. AVA Svs., Inc.,
    
    104 S.W.3d 671
     (Tex. App—Corpus Christi 2003, pet. denied) ......... 35, 36, 37, 38, 40, 41, 58, 68
    Pool v. Ford Motor Co.,
    
    715 S.W.2d 629
    (Tex. 1986) ........................................... 27, 32, 34, 46, 48, 62, 71
    ix
    Pulaski Bank & Trust Co. v. Texas Am. Bank/Fort Worth, N.A.,
    
    759 S.W.2d 723
    (Tex. App.—Dallas 1988, writ denied) .....................................50
    Quality Infusion Care, Inc. v. Health Care Serv. Corp.,
    
    224 S.W.3d 369
    (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................27
    SAS Inst., Inc. v. Breitenfeld,
    
    167 S.W.3d 840
    (Tex. 2005) ................................................................................26
    Spolijaric v. Percival Tours, Inc.,
    
    708 S.W.2d 432
    (Tex. 1986) ................................................................................59
    State Farm Fire & Cas. Co. v. Morua,
    
    979 S.W.2d 616
    (Tex.1998)..................................................................................38
    Tony Gullo Motors, I L.P. v. Chapa,
    
    212 S.W.3d 299
    (Tex. 2006) ................................................................... 56, 59, 64
    Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A.,
    
    121 S.W.3d 742
    (Tex. 2003) ................................................................................26
    White v. Harrison,
    
    390 S.W.3d 666
    , 675-76 (Tex. App.—Dallas 2012, no pet.) ...............................45
    Williams v. Colthurst,
    
    253 S.W.3d 353
    (Tex. App.—Eastland 2008, no pet.) .................................. 30, 34
    x
    RULES
    TEX. R. APP. P. 25.1..................................................................................................67
    TEX. R. APP. P. 33.1(a)(1) ................................................................................. 63, 66
    TEX. R. APP. P. 38.1......................................................................... 33, 34, 49, 52, 66
    TEX. R. APP. P. 38.1(i) ....................................................................................... 44, 64
    TEX. R. APP. P. 38.2(a)(2)........................................................................................51
    TEX. R. APP. P. 38.2(a)(1)(B) .....................................................................................1
    TEX. R. APP. P. 39.1.................................................................................................. ix
    TEX. R. APP. P. 47.1..................................................................................................68
    TEX. R. CIV. P. 166a(c)...................................................................................... 62, 66
    TEX. R. CIV. P. 277 ...................................................................................................56
    xi
    STATEMENT REGARDING ORAL ARGUMENT
    Though Marinecorp’s brief is voluminous, this case does not merit oral
    argument. Oral argument is unnecessary because: (a) the appeal is frivolous; (b)
    the dispositive issues have been authoritatively decided; (c) the facts and legal
    arguments are adequately presented in the briefs and record; and (d) the decisional
    process would not be significantly aided by oral argument. See TEX. R. APP. P.
    39.1.
    xii
    ISSUES PRESENTED
    ISSUE ONE
    Chopper and Outlaw Gave Marinecorp Written Notice of Each
    Default and Thirty Days to Cure Each of its Breaches of the Lease.
    The Lease Agreements Did Not Require Written Notice of
    Marinecorp’s Defaults by Certified Mail, Return Receipt Requested.
    ISSUE TWO
    After Marinecorp Breached the Implied Warranty of Suitability and
    Committed Deceptive Trade Practices in Regard to the Parking-Lot
    Lights, Leaking Roof, Electrical Wiring, and Air Conditioning,
    Chopper and Outlaw Country Lawfully Tried to Protect Their
    Investment by Continuing Under the Leases and Asking Marinecorp
    to Fix the Problems. The Griffin Rule is Inapplicable Under the Facts
    of This Case.
    ISSUE THREE
    Sufficient Evidence Supported the Jury’s Finding that Marinecorp
    Failed to Mitigate its Alleged Damages.
    ISSUE FOUR
    Sufficient Evidence Supported the Jury’s Verdict. The Jury was not
    Required to Conclude that Outlaw Country Delayed its Own Opening.
    ISSUE FIVE
    The Trial Court Correctly Rejected Marinecorp’s Proposed Jury
    Question Concerning Whether Outlaw Country Failed to Mitigate its
    Damages Because Neither the Law nor Evidence Supported such a
    Question in This Case.
    xiii
    ISSUES SIX THROUGH EIGHT
    Issues Six Through Eight Should be Overruled Because Sufficient
    Evidence Showed Marinecorp Committed Deceptive Trade Practices
    and Separately Breached its Written Lease Agreements with Chopper
    and Outlaw. The record does not show Chopper and Outlaw Country
    attempted to bring a Property Code wrongful-eviction claim under the
    DTPA.
    ISSUE NINE
    The Trial Court’s Modified Final Judgment Awarding Prejudgment
    Interest Should be Affirmed Because Issue Nine is Unpreserved for
    Appellate Review.
    ISSUE TEN
    On Appeal, Marinecorp has not Shown Entitlement to Damages for
    Alleged Breach of Guaranty.
    ISSUE ELEVEN
    The Trial Court did not Award Cumulative Damages for DTPA
    Violations and Breach of Contract.
    ISSUE TWELVE
    On Appeal, Marinecorp has not Shown Entitlement to Damages for
    Alleged Breach of a Promissory Note.
    ISSUE THIRTEEN
    Legally and Factually Sufficient Evidence Supports the Trial Court’s
    Judgment Awarding Actual Damages.
    xiv
    IN THE COURT OF APPEALS
    FOR THE FIRST JUDICIAL DISTRICT OF TEXAS
    AT HOUSTON, TEXAS
    NO. 01-14-00707-CV
    MARINECORP INTERNATIONAL, LTD.,
    Appellant,
    v.
    THE CHOPPER GROUP, LLC AND OUTLAW COUNTRY, LLC
    Appellees.
    On Appeal From the 80TH Judicial District Court,
    Harris County, Texas, Cause No. 2012-23983
    APPELLEES, THE CHOPPER GROUP, LLC, BACKWOODS COUNTRY
    CLUB, LLC, TONY MILLER AND KYLE TONES’ BRIEF
    STATEMENT OF FACTS 1
    A.     Tony Miller’s Testimony and Choppers Sports Bar & Grill2
    Tony Miller is a construction contractor who wanted to open a bar and grill
    as an investment. (3 RR p. 131, l. 19-20). He intended to open Choppers Sports
    Bar and Grill, get it up and running successfully, and later sell the business. (4 RR
    p. 80, l. 4-10). Miller is sole owner of two companies, Appellee, The Chopper
    1
    Appellees Chopper and Outlaw Country include this Statement of Facts pursuant to Texas
    Rule of Appellate Procedure 38.2(a)(1)(B). See TEX. R. APP. P. 38.2(a)(1)(B). This Statement of
    Facts is based on the evidence presented to the jury during the trial of this case.
    In this brief, the reporter’s record is cited in the following format: “[Volume Number]
    RR, p. [Page Number], l.[Line Numbers]”, and trial exhibits are cited by their number and
    location in the record. The Clerk’s Record is cited in the following format: “[Volume Number]
    CR [Page Number]. Marinecorp’s brief is cited as needed in the following format: “MC Brief,
    P.[Page Number].
    2
    The summary of the evidence concerning the establishment of Choppers Bar and Grill and
    Outlaw Country dance hall is based primarily on Tony Miller’s trial testimony.
    Group, L.L.C. (hereinafter “Chopper”), and Appellee, Backwoods Country Club,
    L.L.C. d/b/a Outlaw Country (hereinafter “Outlaw Country”). (3 RR p. 141, l. 7-p.
    142, l. 1).
    In Spring 2010, Miller first met and started working with commercial real
    estate broker Grady Lee Tibbs. (4 RR p. 147, l. 18-p. 148, l. 11). Tibbs searched
    for space Chopper could lease for Choppers Sports Bar and Grill. Tibbs showed
    Miller a restaurant space located at 18419 Kuykendahl that was available for lease.
    (4 RR p. 148, l. 9-11). If Chopper decided to lease the space, Marinecorp would
    pay Tibbs 4% of the rent from the lease as a commission for leasing the space. (5
    RR p. 225, l. 16-24).
    When Tibbs showed Miller the space, it was a former Marco’s Mexican
    Restaurant that had sat vacant for about two years. (5 RR p. 230, l. 22-p. 231, l. 6).
    Yet, when Miller first saw the vacant space, the tables from Marco’s Mexican
    Restaurant were still set and there was still food in the kitchen.3 (3 RR p. 152, l.
    10-15).
    The space was 5,400 square feet in size and Chopper decided to lease it,
    remodel and clean it, and open for business. (3 RR p. 141, l. 11-18). The lease
    was executed on April 20, 2010, and working with a crew of twenty to thirty
    people, Miller had Choppers open for business within eight to ten weeks of signing
    3
    Miller testified that when he first saw the kitchen space in the vacant Marco’s Mexican
    Restaurant, it was “nasty.” (3 RR p. 152, l. 3-9).
    2
    the lease. (3 RR p. 142, l. 9-p. 143, l. 20). Marinecorp fixed the leaking roof. (3
    RR p. 171, l. 22-25). The space had no electricity because the interior and exterior
    electrical wiring had all been stripped away. (3 RR p. 153, 9-21). What remained
    of the interior electrical panel was damaged because rain had poured into it from
    the leaking roof.    Miller hired an electrician and, within a month, all of the
    electrical wiring was restored and operational. (3 RR p. 142, l. 9-p. 143, l. 20).
    Before opening, Miller also replaced most of the kitchen equipment, some of
    which was over twenty-five years old. (3 RR p. 152, l.17-p. 153, l. 1). Miller
    removed and rebuilt the bar and replaced the tables. Miller installed televisions
    and games for customer entertainment. (3 RR p. 157, l. 22-24). Vandals had
    stolen the air conditioning units for the space, so Miller paid an air conditioning
    company to restore air conditioning to the space after Marinecorp failed to do so.
    (3 RR p. 143, l. 21-p. 144, l. 11).
    Choppers Sports Bar and Grill opened for business in mid-July 2010.
    Choppers was open daily for lunch and dinner and operated successfully in terms
    of Miller meeting his responsibilities. (6 RR p. 49, l. 11-15). But, early on, a
    serious problem became apparent; the parking-lot lights, for which Marinecorp was
    responsible under the lease, did not work. (3 RR p. 144, l. 12-p. 145, l. 11). The
    timing could not have been worse for Choppers—it was the start of the football
    season and Choppers was hoping to attract customers to watch football.
    3
    The dark parking lot posed a serious safety risk to Choppers’ customers and
    employees. The dark parking lot cost Choppers business because prospective
    patrons did not want to watch events like Monday Night Football at a place with a
    “scary” parking lot. Miller complained constantly to Marinecorp about the lack of
    parking-lot lights. (3 RR p. 145, l. 4-p. 147, l. 8). Miller complained by phone,
    text, and in person at Marinecorp’s office. (3 RR p. 145, l. 4-p. 147, l. 8). He
    primarily voiced his complaints to Mike Mirza, the property manager Marinecorp
    had assigned to the shopping center. (9 RR pp. 7-8; p. 77; PX 3, text messages
    from Miller to property manager complaining about lights and loss of football
    customers).
    Marinecorp had its maintenance man, Louis, try to fix the parking-lot lights
    and never hired an electrician to fix the lights. (3 RR p. 170, l. 14-22). Rather than
    fixing the problem within a couple of days by hiring a licensed electrician, around
    September 12, 2010, Marinecorp had a new meter installed and then placed
    temporary generators and lighting in the Choppers parking lot. (6 RR p. 36, l. 25-
    p. 37, l. 7; 3 RR pp. 144-145; 3 RR p, 171, l. 3-9). These did not supply the same
    amount of light as normal parking-lot lights, and Miller had to refill the diesel fuel
    in the generators every other day, at his own expense. In October 2010 and even
    into February 2011, Choppers continued to complain by text message to
    4
    Marinecorp’s property manager that the parking lot lights were not working and it
    was losing customers as a result. (9 RR pp. 7-8, 77).
    Miller also testified that there was a manhole with a missing cover outside of
    Choppers. It was near the dumpster and the cover was missing since April 2011.
    Miller feared a child could fall into the hole, down into a sewage line. He reported
    it to Marinecorp, but even though it was in a common area, Marinecorp would
    never cover it. In fact, Marinecorp told Miller to cover it. So, Miller made a
    conscious effort to keep it covered with a piece of wood. Miller testified the
    manhole still lacked a cover at the time of trial, long after Choppers had closed
    down. (3 RR p. 168, l. 6-23).
    B.    The Second Lease – Outlaw Country
    Marinecorp closely monitored Miller’s progress in remodeling and opening
    Choppers. Marinecorp had an office nearby in The Woodlands, so they would
    send someone to the property almost daily to monitor the renovation of the
    Choppers lease space. Shortly after Choppers opened, during the summer of 2010,
    the property manager, Mirza, approached Miller about whether he would lease and
    renovate the vacant Walgreens in the same shopping center. The only reason
    Miller even considered leasing and renovating the second space was that
    Marinecorp adamantly promised it would fix the parking-lot lights Choppers
    5
    needed. Otherwise, Miller would not have considered working with Marinecorp
    on a second project. (3 RR pp. 145-147).
    The former Walgreens space was 10,998 square feet in size and had been
    vacant for eight years. 4 There was scattered insulation and mold in the space. The
    floor needed to be replaced and the roof leaked extensively, even into the electrical
    room. The electricity could not work (in part because copper thieves had stolen the
    wiring) and the air conditioning units had been stolen. (3 RR p. 148, l. 2-12).
    Miller was interested in leasing the space to operate a country and western
    dance hall and concert venue that would open primarily on the weekends. (3 RR p.
    49, l. 16-19). As with Choppers, Miller’s intent was to remodel the space, start a
    successful business, and then sell it. But Miller could not agree to lease the space
    as-is. The renovation would cost approximately two million dollars, and even with
    the financial help of an investor, Kyle Tones, Miller could not fund the entire
    renovation up front, out-of-pocket. (3 RR p. 161, l. 22-p. 162, l. 20). So, acting
    through broker Bud Tibbs, Miller negotiated a lease with Marinecorp under which
    Marinecorp would: (1) fix the leaking roof; (2) supply 1,000 amps of electrical
    capability to the space; and (3) provide 60 tons of working air conditioning. (3 RR
    p. 149, l. 1-p. 151, l. 14).
    4
    Tibbs and Miller testified the former Walgreens had been vacant for eight years. Mirza
    initially testified it had been vacant for three years, then testified it had been vacant for four or
    five years. (5 RR p. 234, l. 16-18; 6 RR p. 35, l. 10-25).
    6
    Miller agreed to “build out” and renovate the former Walgreens space under
    a strict three-phase construction schedule Marinecorp required.5 The parties agreed
    that if Miller complied with the three-phase construction schedule, Marinecorp
    would advance Miller approximately $166,000 toward the renovation, but Outlaw
    Country would have to repay this amount in the form of increased rent payments
    during the life of the lease. (3 RR p. 162, l. 4-20).
    The Outlaw lease was executed on September 28, 2010. But ten days before
    the lease was even signed, Miller and about eleven other men began the
    renovations, just to keep up with the three-phase construction schedule and meet
    the November 1, 2010 commencement (opening) date set forth in the lease. (3 RR
    p. 159, l. 2-p. 160, l. 22). After the lease was signed, Miller had thirty to forty
    people working under him to renovate the space on schedule, which they did. (3
    RR p. 160, l. 25-p. 161, l. 23). Among other things, Miller and his crew replaced
    the flooring, removed the pharmacy wall, added a bar and DJ booth, and added
    office and storage space (needed for beverages and live-show equipment). (3 RR
    p. 154, l. 16-24). They also created a 2,000 square foot dance floor, one of the
    largest in the Houston area, and bathrooms that “met code” for 1,000 person
    occupancy. (3 RR p. 155, l. 12-p. 156, l. 4; p. 166, l. 12-p. 167, l. 17). As
    5
    During the Outlaw Country lease negotiation, Marinecorp had Miller, a contractor by trade,
    submit plans for a three-phase build construction schedule of the former Walgreens. A copy of
    the plans is in the record. (9 RR p. 3; PX 2). Marinecorp inspected the property at the
    conclusion of each construction phase to see that the work was completed. (3 RR p. 161, l. 13-
    23).
    7
    renovated by Miller, the former Walgreens was suitable for hosting concerts,
    wedding receptions, and even conventions, and such events were scheduled to
    begin in November 2010. (3 RR p. 135, l. 19-23; pp. 156, 180).
    But Outlaw Country met a significant hurdle—Marinecorp did not meet its
    obligations under the lease to repair the leaking roof, provide electrical capability,
    and sixty tons of air conditioning. This resulted in significant business losses for
    Outlaw Country, including three failed grand openings for which major musical
    acts had been scheduled and advertised. (5 RR p. 8, l.4-p. 9, l. 20).
    C.    The Unrepaired Roof at Outlaw Country
    Every time it rained, “it was a mess” inside of Outlaw Country. (3 RR p.
    164, l. 5-10). Miller and Tibbs complained to Mirza by text and email. (5 RR p.
    33, l. 11-22). They even complained about the roof in person at the Marinecorp
    office. Miller obtained several bids for necessary roof repairs but Marinecorp
    would not have the roof work done. The property manager, Mirza, referred Miller
    to a roof repairman named Oscar, claiming Marinecorp had hired Oscar to repair
    Outlaw Country’s roof.        But when Miller contacted Oscar, he learned that
    Marinecorp had only paid Oscar $600 for roof repairs and Oscar refused to
    perform any further repairs without additional pay. 6 So, Miller even tried to patch
    6
    Oscar told Miller he had already visited the Outlaw Country roof six times for the $600
    payment from Marinecorp. (3 RR p. 163, l. 17-p. 164, l. 4).
    8
    some of the roof himself, but major repairs were necessary. (3 RR p. 163, l. 17-p.
    164, l. 11).
    On December 29, 2010, a particularly bad roof leak occurred at Outlaw
    Country. Rain poured down onto a stage Miller had recently installed, and the
    building’s interior electrical panel was “full of [rain] water.” Rain ran down an
    interior wall. Miller had to place a horse trough and five-gallon buckets inside of
    Outlaw Country to try to catch the rain pouring in through the roof. The water
    leaking through the roof pulled insulation into the space. A piece of conveyor belt
    that had been affixed to the roof with tar gave way and Miller realized “repairs”
    had been made using items that were “not roofing material.” Miller took photos of
    this leak incident and sent them to Mirza the same day. (3 RR p. 158, l. 16-23).
    But Marinecorp still never repaired the roof and it remained unrepaired at the end
    of 2012 and at the time of trial. (3 RR p 164, l. 16-p. 165, l. 25).
    D.     Marinecorp’s Failure to Timely Provide Electrical Hookups at Outlaw
    Country
    Miller finished his renovation of Outlaw Country on time and expected
    Marinecorp to timely install the electrical hook-ups by the November 1 absolute
    deadline.      In October 2010, Miller applied for electrical service from Green
    Mountain Energy, only to find out Outlaw Country could not yet receive electricity
    9
    because Marinecorp still had not installed any electrical hook-ups. 7 (3 RR p. 172,
    l. 9-p. 174, l. 24; PX 74).
    Marinecorp’s electrician, Jim Hofelich, whom Miller had used successfully
    for smaller projects, had great difficulty establishing hook ups for 1,000 amps of
    electricity at Outlaw Country. It took Hofelich months to complete the job because
    Marinecorp ordered the wrong parts and two or three times when Hofelich thought
    the job was completed, CenterPoint Energy came out to inspect and would not
    approve Hofelich’s work. Throughout the process, Miller complained by text,
    email and in-person at Marinecorp’s office, but Marinecorp was not concerned
    about the delay. Outlaw Country did not have working electricity until January 24,
    2011. (3 RR p. 172, l.9-p. 180, l. 1).
    The electrician, Hofelich, testified candidly at trial and corroborated Miller’s
    testimony. Hofelich did a fair amount of work for Marinecorp and his wife was a
    teacher in the Nasser8 family’s Montessori school, located in the same shopping
    center as Choppers and Outlaw Country. (5 RR p. 166, l. 12-18). Hofelich
    testified it had been four or five years since he had “built an electrical service” for
    a space and that doing so for Outlaw Country was entirely his responsibility as
    Marinecorp had hired him to do so. (5 RR p. 191, l. 1-18; p. 194, l. 7–22).
    7
    The lack of electricity during the Outlaw Country renovation posed a large problem for Miller.
    He had to run electricity from his Chopper space to Outlaw Country so he could renovate.
    Marinecorp was aware of this, but still failed to timely deliver electrical capacity. (3 RR p. 178,
    l. 2-p. 179, l. 3).
    8
    The Nasser family owns Marinecorp.
    10
    Hofelich testified that while he first attempted the work the latter half of October
    2010, and initially invoiced Marinecorp for the electrical hook-ups at Outlaw
    Country in November 2010, CenterPoint Energy soon came out and refused to
    approve his work for use. (5 RR p. 177, l. 7-p. 179, l. 5).
    Hofelich testified that he notified Marinecorp’s property manager, Mirza, of
    this and discussed the issue with Mirza because this was work he was performing
    for Marinecorp, not Miller. Hofelich’s next attempt was likewise rejected by
    CenterPoint until January 2011. (5 RR p. 179, l. 2-p. 182, l. 22; p. 183, l. 16-21).
    E.     Marinecorp’s Failure to Timely Provide the Sixty Tons of Air
    Conditioning
    To make the office space in Outlaw Country usable, Miller had an air-
    conditioning technician set up one unit by mid-October. Marinecorp, which was
    responsible for providing 60 tons of air conditioning to the space, had large units
    installed in late 2010, (3 RR p. 184, l. 3-8).
    Marinecorp hired a licensed a/c contractor, Thon Dang, to install the four a/c
    units on top of the Outlaw Country roof. Dang testified he expressly excluded
    connection of the units to high voltage from his written bid to Marinecorp. That is
    an electrician’s work. Accordingly, about a week after he installed the units, in
    November 2010, there was a test meeting at the space with Dang and Marinecorp.
    The a/c units were connected to voltage and they worked properly. (5 RR p. 120, l.
    1-p. 127, l. 9; p. 133, l. 1-p. 136, l. 25).
    11
    As Outlaw Country still lacked electrical hooks ups, electricity from
    Marinecorp’s common-area parking-lot meter was used to conduct the test.
    Hofelich testified he never connected or disconnected the a/c units to electricity
    and that he saw Marinecorp’s maintenance man, Louis, working with an electrician
    on doing so. (5 RR p. 195, l. 21-p. 196, l. 25).
    In February 2011, Tones and Miller organized a third grand opening at
    Outlaw Country. They spent just under $25,000 to book country singer Tracy
    Lawrence along with other bands. (3 RR p. 184). Although about 800 people
    arrived for the February 19 grand opening, over half of them left before Lawrence
    even took to the stage because the venue was unbearably hot. (3 RR p. 184, l. 16-
    22).
    Miller reported to Marinecorp that the a/c was not working. He texted
    Mirza, called the company president Nasser, and complained in person at
    Marinecorp’s office.     After a couple of days, when Marinecorp had still not
    repaired the problem, despite promising to do so, Miller hired an a/c company,
    Durwood A/C, to diagnose the problem. Durke Turner from Durwood went on the
    roof and discovered three of the four a/c units were not connected to any electrical
    source. (3 RR p. 185, l. 2-p. 186, l. 22). Turner testified at trial, by deposition, and
    his testimony corroborated Miller’s. (5 RR pp. 48-60).
    12
    Miller’s testimony about Marinecorp’s conduct was also corroborated by the
    real-estate broker Marinecorp paid, Grady Tibbs, and by Kyle Tones, the investor
    who sued Miller after Choppers and Outlaw Country closed, following the lockout.
    F.     Testimony of Realtor Tibbs: The Lockout and Marinecorp’s Use of
    Miller
    At the time of trial, Grady “Budd” Tibbs had been a commercial real estate
    broker for twenty years. He had no stake in the lawsuit, but if he displeased
    Marinecorp he stood to lose future business opportunities. Tibbs testified that it
    was his usual practice after a space leased, to follow up with all parties to ensure
    their satisfaction. (4 RR p. 147, l. 1-p. 149, l. 25).
    Tibbs participated in the lease negotiations for Choppers and Outlaw
    Country. In regard to Choppers, Tibbs testified that the need for high-volume
    parking was a negotiated lease term and Mirza represented the parking-lot lights
    and a large, lit pylon sign advertising Choppers to passing traffic would be fixed
    “ASAP.”       Mirza represented these items would be completed during the
    renovations, before Choppers was ready to open for business. Tibbs complained
    daily to Mirza about the lack of progress on these items, and while Mirza would
    promise to make the needed repairs right away, nothing would happen. Tibbs
    testified the light on the Choppers sign was never fixed. (4 RR p. 149, l. 1-p. 151,
    l. 10; p. 152, l. 14-15).
    13
    Tibbs testified further that the unlit Choppers parking lot was “very dark”
    and “scary.”    It was definitely “bad for business.” “Ultimately,” Marinecorp
    placed “cheap looking” construction-site lighting with two big generators in the
    Choppers parking lot, but this did not provide the same amount of illumination as
    customary parking-lot lighting. (4 RR p. 152, l. 14-p. 154, l. 25). Tibbs testified
    that having Marinecorp’s under-qualified maintenance man, Louis, trying to fix the
    parking-lot lights was an impediment to resolving the problem efficiently. (4 RR p.
    155, l. 1-9).
    In terms of the Outlaw Country lease, Tibbs testified that it was negotiated
    that Marinecorp would get the roof repaired and power capability restored
    “ASAP.”     These items were of paramount importance. All of the building’s
    internal and external wiring had been stripped out.         Miller needed power to
    renovate the space. Tibbs testified that as part of the lease negotiations, Mirza
    represented to Miller that he would complete the roof and power work
    “immediately.” The absolute completion deadline under the lease would have
    been the November 1, 2010 commencement date. (4 RR p. 154, l. 2-5 RR p. 8, l.
    4).
    At trial, Tibbs believed the roof had still not been repaired and recalled there
    was always a leak “where the power box came into the space.” Tibbs testified that
    because of the roof and electrical issues, Outlaw Country’s grand opening was
    14
    canceled at least three times despite Outlaw Country scheduling performers like
    Mark Chestnut and John Cassidy for the grand openings. Outlaw Country had
    even run radio advertisements for the grand openings. (5 RR p. 7, l. 1-p. 12, l. 25).
    Tibbs believed Choppers and Outlaw Country ultimately failed because of
    Marinecorp. The unlit parking lot at Choppers and the canceled grand openings at
    Outlaw Country were bad for business. When Outlaw Country finally hosted a
    grand opening in February 2011, 800 to 900 people arrived for a Tracy Lawrence
    concert, but they left in droves when it became apparent the air conditioning was
    not functioning.
    Tibbs described Miller’s renovations of the lease spaces as a “tremendous
    conversion.” He estimated the improvements of Outlaw Country alone were worth
    “a couple of million dollars.” Tibbs testified that the space was “very, very nice”
    and Miller’s renovations made the other spaces in the shopping center more
    leasable. (5 RR p. 14, l. 17-p. 15, l. 2).
    After the buildouts were complete, Miller had multiple prospective buyers of
    the businesses.    Assumability of the lease was a key issue, but each time a
    prospective buyer spoke with Mirza, s/he seemed to lose interest in the purchase.
    (5 RR p. 15, l. 3-p. 17, l. 14).
    Tibbs testified that leading up to the lockout in January 2012, Marinecorp
    would keep changing the rent amounts allegedly due, so that no matter how much
    15
    Miller tendered, Marinecorp always accused Chopper and Outlaw of being in
    default for failure to pay rent. Tibbs traveled to Marinecorp’s offices with Miller
    multiple times and witnessed firsthand the changing rent amounts. (5 RR p. 18, l.
    1-p. 20, l. 25).
    Tibbs testified further that Mirza was not concerned about the delays
    Marinecorp caused Miller in opening Outlaw Country. To Tibbs’s surprise, when
    he raised the subject with Mirza, Mirza responded, ‘Well, we never anticipated for
    them to make it.’ Tibbs testified that nothing Miller did seemed “good enough” for
    Marinecorp after the renovations were completed. Tibbs believed Marinecorp did
    not want Miller in business at the shopping center and did everything possible to
    get rid of him. Tibbs testified he had never before seen anything like this in his
    career. (5 RR p. 14, l. 1-p. 15, l. 25; p. 21, l. 1-6).
    G.     Testimony of Investor Kyle Tones
    Tones knew Miller from prior projects and was an investor in Choppers and
    Outlaw Country. (6 RR p. 114, l. 1-4). Tones provided corroborating testimony
    concerning the problems with the parking-lot lights at Choppers, and the a/c,
    electricity and roof at Outlaw Country. (6 RR p. 121, l. 22-p. 129, l. 11). Tones
    testified that in addition to providing capital for the build outs, Miller physically
    worked day and night on the build outs. (6 RR p. 129, l. 17-p. 132, l. 25).
    16
    Tones, like Tibbs, confirmed that nothing Miller did delayed the electrical
    service to Outlaw Country. (6 RR p. 132, l. 3-25). The first and second grand
    openings had to be moved to Choppers because of the lack of electricity at Outlaw
    Country. (6 RR p. 130, l. 5-p. 132, l. 25). Miller pushed very hard for both
    businesses to survive. Tones testified that Marinecorp, as a landlord, needed to be
    held “accountable.” (6 RR p. 126, l. 3-11).
    H.    Testimony of Marinecorp’s Property Manager Mike Mirza
    Michael “Mike” Mirza is a property manager. He testified that his employer
    was Zenith Real Estate (a family company, related to Marinecorp), but he worked
    as a property manager for Marinecorp.         Mirza testified he was involved in
    negotiating the leases with Chopper and Outlaw Country, and after oral agreements
    were reached, he reduced the agreements to writing. As property manager, Mirza
    was responsible for the daily management of the shopping center, including being
    certain that “vendors” Marinecorp hired to perform work at the property did so.
    Mirza added that his job is to make sure the tenants were comfortable and things
    were running smoothly. (5 RR, p. 220, l. 15-p. 224, l. 24).
    Ayaz Nasser, the President of Marinecorp, testified that Mirza was a good
    property manager whom he did not fault in this case. (6 RR p. 62, l. 17-22; P. 75).
    Mirza and Nasser met regularly to discuss the status of the various Marinecorp
    properties.
    17
    Mirza first met the real estate broker, Tibbs, in May 2010. Mirza testified
    that Tibbs showed the space in the shopping center to other clients before bringing
    Miller to see it. Mirza testified that Miller accepted the Choppers space as-is and
    Miller paid out of his own pocket to renovate it. (5 RR p. 220-p. 224, l. 13).
    Miller worked with CenterPoint Energy to turn on electricity in the space using a
    new meter. Mirza acknowledged the parking-lot lights did not work at Choppers
    Sports Bar and Grill, but testified he believed the street lights and lighting from a
    nearby Burger King and neighboring shopping center were supplying light. On
    cross-examination, Mirza admitted the lights in the surrounding area were
    inadequate to satisfy Marinecorp’s duty to provide parking-lot lights for Choppers.
    Mirza believed an underground wiring problem caused the outage. Mirza admitted
    the Choppers parking-lot lights were completely out for at least five or six weeks
    while a workman tried to diagnose the cause of the outage. (6 RR, p. 31, l. 21-p.
    35, l. 25).
    On cross-examination, Mirza conceded the parking-lot lights could not have
    been fully functional even after five or six weeks because Marinecorp did not have
    a functioning meter in place for this common-area space until mid-September. (6
    RR p. 32, l. 21-p. 33, l. 7). Mirza testified he is not an electrician and he could not
    answer why it took more than a couple of days to restore the parking-lot lights. (6
    RR p. 37, l. 15). Mirza testified that he promised Miller he would get the parking-
    18
    lot lights working and that he knew Miller relied on his representation, particularly
    in considering whether to renovate Marinecorp’s former Walgreens space. (6 RR
    p. 30, l. 18-p. 31, l. 9).
    According to Mirza, after Choppers opened in July 2010, Tibbs approached
    Mirza about Miller renovating and leasing the former Walgreens space for Outlaw
    Country, a dance hall. Mirza testified the former Walgreens space was “in good
    condition” when Marinecorp leased it to Outlaw Country.           Mirza “didn’t see
    anything wrong with it.” But, when questioned further, Mirza conceded the floors
    needed to be replaced, the air conditioning units had been stolen, and there was no
    power in the space. (5 RR p. 232, l. 2-p. 235, l. 25).
    Mirza acknowledged that under Outlaw Country’s lease of the vacant
    Walgreens space, Marinecorp agreed to provide 1,000 amps of electrical
    capability, sixty tons of air conditioning, and to fix the leaking roof. While the
    space was nearly 11,000 square feet in size, Mirza testified that Marinecorp paid
    Oscar $600 to fix the entire roof and Oscar did so. (6 RR p. 38, l. 20-25).
    As to the electricity at Outlaw Country, Mirza testified that electrician Jim
    Hofelich tendered him an invoice on November 8, 2010 and Mirza believed that as
    of that time, 1,000 amps of electricity had been hooked up. Mirza testified he first
    learned of any electrical problem in the courtroom at trial. Mirza denied that
    Miller ever emailed, texted or sent a letter mentioning any delay hooking up the
    19
    electricity as represented.9 (6 RR p. 39, l. 24-p. 41, l. 25). Mirza testified that
    although Hofelich testified that from the end of November through early January,
    he was in Mirza’s office regularly and communicating with Mirza daily about the
    problems hooking up electricity at Outlaw Country, this did not happen. (6 RR p.
    13, l. 24-p. 14, l. 4).
    Concerning the 60 tons of air-conditioning at Outlaw Country, Mirza
    testified that at the test hook-up in November 2010, the air conditioning worked.
    Mirza testified he did not know what happened to cause the units to become
    disconnected from the power source between the test and February 2011. Mirza
    testified that had he known the a/c units were not hooked up to a power source, he
    would have repaired the problem. On cross-examination, Mirza admitted that the
    a/c units had been tested by hooking them up to the electrical source for the
    parking lot lights, for which Marinecorp paid.              Marinecorp would not allow
    Outlaw Country to run its a/c using its parking-lot electricity. Outlaw Country had
    no electrical hook up at the time, so its electricity could not have been used to test
    the function of the a/c units. (6 RR p. 45, l. 6-p. 46, l. 23).
    Mirza testified that he knew Miller was planning a grand opening for Outlaw
    Country during the 2010 Thanksgiving holiday and when that failed, Miller
    9
    Mirza testified that while Miller had construction ongoing in the lease spaces, he and Miller
    spoke daily at the work sites. Mirza also testified generally that he received a few emails and
    texts from Miller, and that Miller and Tibbs complained in person a few times at Marinecorp’s
    offices.
    20
    attempted a New Year’s Eve grand opening that was also unsuccessful. Mirza
    insisted that Marinecorp completed all of its work due under the Outlaw Country
    lease agreement by November 8, 2010. But he acknowledged that, on behalf of
    Marinecorp, he gave Outlaw Country two months’ “free” rent after the problems
    delayed their grand openings.10 (6 RR p. 56, l. 14-p. 59, l. 8; p. 66, l. 15-p. 67, l.
    25).
    I.     Testimony of Marinecorp’s Corporate Representative Ed Wolochin
    Wolochin is a Senior Property Manager at Marinecorp. He acknowledged
    that Tibbs and Miller came to his office to complain on at least two occasions. (5
    RR p. 80, l. 23-p. 81, l. 6). Wolochin testified that Choppers was usually current
    on its rent payments, and that it was even current on its rent at the end of 2011
    before the January lockout. (6 RR pp. 85-86). He admitted there were sometimes
    mistakes in in calculating the rent amounts owed, but testified they were corrected.
    (5 RR p. 82).
    Wolochin described the Outlaw Country business as healthy when a couple,
    the Harlesses, attempted to take it over. (5 RR p. 96). After that point, Wolochin
    described alleged difficulty collecting rent.          Wolochin testified that after the
    10
    Miller testified that Marinecorp recouped “free” rent amounts by increasing rent amounts due
    later in the life of the lease agreement. With the two months’ additional free rent, Outlaw
    Country’s first rent payment would be due in June 2011, instead of April 2011.
    21
    January 2012 lockout, he does not recall Miller bringing the Outlaw Country rent
    fully current. (5 RR pp. 86-89).
    J.      The Re-Finance and Marinecorp’s Reluctance to Lease to Alcohol
    Vendors
    Wolochin testified that he believed a member of the Nasser family opposed
    Outlaw Country and Chopper selling liquor in the shopping center. (5 RR p. 102,
    l. 1-p. 103, l. 22). Marinecorp’s President, Nasser, testified candidly that his
    family owns Marinecorp and their beliefs do not permit alcohol consumption. (6
    RR p. 71, l. 8-15).
    Nasser also testified that the renovations Miller provided made the shopping
    center look good. With the renovations, the family was able to refinance the
    shopping center using a major bank, Wells Fargo, instead of having a related
    family company hold the note for the shopping center. (6 RR pp. 64, 72-73).
    K.      The Jury’s Verdict
    The jury found Marinecorp breached its contract with Chopper and Outlaw
    Country, and that while Outlaw Country also breached its contract, Marinecorp
    breached first. (1 CR 403-408). Marinecorp was awarded no damages for breach
    of contract. Though the jury awarded Chopper and Outlaw Country damages for
    breach of contract, the trial court did not enter judgment for these damages. (1 CR
    409).
    22
    The jury also found Marinecorp breached its implied warranty of suitability
    for both leases and knowingly violated the Texas Deceptive Trade Practices Act
    (“DTPA”) in dealing with Chopper and Outlaw. (1 CR 417-419). In its Modified
    Final Judgment, the trial court entered judgment for actual damages for Chopper of
    $210,000 and Outlaw Country of $290,000. (1 CR 590). Outlaw and Chopper
    were also awarded $11,000 each for the knowing DTPA violation and attorney’s
    fees, plus prejudgment interest.
    SUMMARY OF THE ARGUMENT
    From the outset, when Chopper and Outlaw Country called the first witness
    at trial, this case turned on the credibility of the witnesses for each side. By its
    verdict, the jury found Chopper and Outlaw Country’s case credible and
    disbelieved the defense. The trial court properly entered judgment on the verdict
    and this honorable court should affirm the trial court’s Modified Final Judgment
    because Marinecorp has not demonstrated reversible error on appeal.
    Specifically, the evidence is factually and legally sufficient to support the
    trial court’s judgment on liability and damages (Issues 3, 4, 6, 8, 13).        The
    evidence shows Chopper and Outlaw Country complied with the lease language
    requiring them to give Marinecorp 30 days’ notice of its defaults under the lease
    agreements (Issue 1).
    23
    Whether analyzed under warranty law or contract law, Chopper and Outlaw
    did not waive their claims against Marinecorp by trying to resolve their differences
    with Marinecorp instead of hastily abandoning their leases. The Griffin rule is
    inapplicable because landlord-tenant law allows a tenant to protect his investment
    by trying to resolve differences with a landlord before seeking rescission (Issue 2).
    The law and evidence supported the trial court’s submission of a jury
    question on whether landlord Marinecorp mitigated its damages after locking
    Chopper and Outlaw Country out of their lease spaces (Issue 3). The law and
    evidence did not support a submission on whether Outlaw Country mitigated its
    damages because Marinecorp’s breach had not yet occurred at the time Marinecorp
    identifies as a mitigation opportunity (Issue 5).        Marinecorp cannot use a
    mitigation argument to shift its contract and warranty responsibility to provide
    electricity.
    There was no violation of the one-satisfaction rule in this case.           The
    evidence showed separate DTPA violations and breach of contract, and the trial
    court only entered judgment awarding actual damages for DTPA violations (Issue
    11). Finally, several issues presented are waived or moot (Issues 7, 9, 10, 12).
    ARGUMENT AND AUTHORITIES
    ISSUE ONE (RESTATED)
    Chopper and Outlaw Gave Marinecorp Written Notice of Each
    Default and Thirty Days to Cure Each of its Breaches of the Lease.
    24
    The Lease Agreements Did Not Require Written Notice of
    Marinecorp’s Defaults by Certified Mail, Return Receipt Requested.
    By its first issue, Marinecorp erroneously argues that Chopper and Outlaw
    failed to comply with the lease requirement of giving Marinecorp thirty days’
    written notice of any default under the lease and an opportunity to cure. Both
    Miller and Tibbs testified that they complained constantly about the lack of
    parking-lot lights at Choppers, and Marinecorp’s failure to timely provide
    electrical hook-ups, roof repairs, and sixty tons of air-conditioning at Outlaw
    Country. Miller and Tibbs complained to the property manager by text and email,
    and in-person, multiple times at Marinecorp’s corporate offices. The record shows
    that more than thirty days elapsed after the notice and Marinecorp did not address
    its default in these key areas.
    The unambiguous lease language did not require Chopper and Outlaw
    Country to provide written notice to Marinecorp by certified mail, return receipt
    requested. By its verdict, the jury rejected Marinecorp’s President’s testimony that
    while Mirza was a good property manager, Marinecorp never realized or had it
    brought to Nasser’s attention that Chopper and Outlaw Country believed
    Marinecorp defaulted and wanted the necessary repairs made.
    25
    A.     De Novo Standard of Review Applies to Contractual Notice Clause
    Whether a contract is ambiguous is a question of law for the court. Heritage
    Res., Inc. v. NationsBank, 
    939 S.W.2d 118
    , 121 (Tex. 1996); Chapman v. Abbot,
    
    251 S.W.3d 612
    , 616-17 (Tex. App.—Houston [1st Dist. 2007, no pet.). If the
    contract is so worded that it can be given a definite legal meaning or interpretation,
    then it is not ambiguous, and a court should construe the contract as a matter of
    law.   SAS Inst., Inc. v. Breitenfeld, 
    167 S.W.3d 840
    , 841 (Tex. 2005); ACS
    Investors, Inc. v. McLaughlin, 
    943 S.W.2d 426
    , 430 (Tex. 1997); 
    Chapman, 251 S.W.3d at 616-17
    .       An appellate court construes an unambiguous contract
    according to the plain meaning of its express wording. Lyons v. Montgomery, 
    701 S.W.2d 641
    , 643 (Tex. 1985; 
    Chapman, 251 S.W.3d at 616-17
    . Unambiguous
    contracts are enforced as written. Heritage Res., 
    Inc., 939 S.W.2d at 121
    .
    “A contract is ambiguous when its meaning is uncertain and doubtful or is
    reasonably susceptible to more than one interpretation.” 
    Id. An appellate
    court
    determines whether a contract is ambiguous by looking at the contract as a whole
    in light of the circumstances present when the parties entered the contract.
    Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 
    121 S.W.3d 742
    , 746 (Tex. 2003); 
    Chapman, 251 S.W.3d at 616-17
    . When a contract contains
    an ambiguity, either patent or latent, the interpretation of the instrument becomes a
    fact issue. Coker v. Coker, 
    650 S.W.2d 391
    , 394 (Tex. 1983); Quality Infusion
    26
    Care, Inc. v. Health Care Serv. Corp., 
    224 S.W.3d 369
    , 379 (Tex. App.—Houston
    [1st Dist.] 2006, no pet.).     The fact finder must resolve the ambiguity by
    determining the true intent of the parties. 
    Coker, 650 S.W.2d at 394-95
    ; 
    Chapman, 251 S.W.3d at 616-17
    .
    B.    Standard of Review for Legal and Factual Sufficiency
    When reviewing the legal sufficiency of the evidence, an appellate court
    considers the evidence in the light most favorable to the challenged finding and
    indulges every reasonable inference that would support it. City of Keller v. Wilson,
    
    168 S.W.3d 802
    , 823 (Tex. 2005). The court credits favorable evidence if a
    reasonable factfinder could and disregards contrary evidence unless a reasonable
    factfinder could not. See 
    id. at 827.
    The reviewing court considers whether the
    evidence at trial would enable reasonable and fair-minded people to find the facts
    at issue. See 
    id. The factfinder
    is the only judge of witness credibility and the
    weight to give to testimony. See 
    id. at 819.
    When reviewing the factual sufficiency of the evidence, an appellate court
    examines the entire record, considering both the evidence in favor of and contrary
    to the challenged finding. Cain v. Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986). After
    considering and weighing all the evidence, the court sets aside the fact finding only
    if it is so contrary to the overwhelming weight of the evidence as to be clearly
    wrong and unjust. Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986).
    27
    Under this standard, the trier of fact is the sole judge of the credibility of the
    witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v.
    Pascouet, 
    61 S.W.3d 599
    , 615-16 (Tex. App.—Houston [14th Dist.] 2001, pet.
    denied).
    C.    Chopper and Outlaw Country Satisfied the Notice Clause
    Sufficient evidence in the trial record shows that Chopper and Outlaw
    Country gave Marinecorp timely notice of its defaults under the lease and at least
    thirty days to cure. In support of its first issue on appeal, Marinecorp relies on the
    following lease sections, including section 21.1 which references written notices
    sent to a particular address by certified mail, return receipt requested for giving
    deemed notice:
    Section 17.11. In the event of any default by Landlord, Tenant’s
    exclusive remedy shall be an action for damages (Tenant hereby
    waiving the benefit of any laws granting it a lien upon the property of
    Landlord and/or upon rent due Landlord), but prior to any such action
    Tenant will give Landlord written notice specifying such default with
    particularity, and Landlord shall thereupon have a reasonable period,
    but in no event less than thirty (30) days, in which to cure any such
    default, provided, however, if Landlord’s default is of such a nature
    that it cannot reasonable [sic] be cured within said thirty (30) day
    period then Landlord will not be deemed to be in default hereunder if
    Landlord has promptly commenced to cure said default and is
    diligently attempting to cure the same. Unless and until Landlord fails
    to so cure any default after such notice, Tenant shall not have any
    remedy or cause of action by reason thereof. All obligations of
    Landlord hereunder will be construed as covenants, not conditions;
    28
    and all such obligations will be binding upon Landlord only during
    the period of its possession of the Shopping Center and not thereafter.
    NOTICES
    Section 21.1. Wherever any notice is required or permitted
    hereunder such notice shall be in writing. Any notice or document
    required or permitted to be delivered hereunder shall be deemed to be
    delivered whether actually received or not when deposited in the
    United States Mail, postage prepaid, Certified Mail, Return Receipt
    Requested, addressed to the parties hereto at the respective addresses
    set out in Section l.l(c) and l.l(f) above, or at such other addresses as
    they may hereafter specify by written notice delivered in accordance
    herewith. 11
    On its face, the first sentence of Section 21.1 of the lease agreements
    mandates that required notices be made in writing, such that oral notice does not
    necessarily satisfy the notice requirements under the leases. See e.g., Besteman v.
    Pitcock, 
    272 S.W.3d 777
    , 784 (Tex. App.—Texarkana 2008, no pet.)(holding that
    11
    In its brief, Marinecorp also cites section 3.1 of the lease to support its 30 days’ written notice
    argument. (MC Brief, p. 17). However, on its face, Section 3.1 does not address notice:
    Section 3.1. If this Lease is for a portion of the Shopping Center already
    constructed, Tenant acknowledges that it has, prior to the execution hereof,
    inspected the Demised Premises, that Landlord’s work is completed (expect as
    may be otherwise expressly provided in Exhibit C attached hereto), and that
    Tenant has accepted the Demised Premises in its "AS-IS" condition, it being
    agreed that Landlord shall have no liability or responsibility for defects in the
    Demised Premises, including latent defects. By occupying the Demised Premises,
    Tenant shall be deemed to have accepted the same and to have acknowledged that
    the same fully comply with Landlord's obligations and covenants hereunder, as
    shown on Exhibit C.
    In the Outlaw Country lease, at the end of Section 3.1, the parties added the following
    language: EXCEPT FOR ELECTRICAL SERVICE SHALL REMAIN AT 1,000 AMPS AND
    INSTALLED BY LANDLORD, HVAC AT 60 TONS.
    29
    a mandatory written-notice provision could not be expanded to allow for oral
    notice without rendering the written-notice provision meaningless). Marinecorp’s
    reliance on Cheung-Loon L.L.C. v. Cergon, Inc., 
    392 S.W.3d 738
    , 745 (Tex.
    App.—Dallas 2012, no pet.), is misplaced because the restaurant-tenant in that case
    only gave oral notice of default to its parking-lot lessor, when the contract required
    written notice and thirty days’ opportunity to cure.
    In this case, the remainder of Section 21.1 sets forth a deemed-notice
    provision whereby notice can be established using prepaid certified mail (return
    receipt requested), even absent actual notice. See Akin v. Santa Clara Land Co.,
    Ltd., 
    34 S.W.3d 334
    , 343-44 (Tex. App.—San Antonio 2000, pet. denied)(finding
    deemed notice in a landlord-tenant case that involved a very similar notice clause
    to Section 21.1). But no language in Section 21.1 makes the prepaid certified mail
    (return receipt requested, to the address set forth in the lease) the exclusive means
    of written notice allowed under the lease. Email and texts can be used to provide
    written notice required under real-estate contracts, so long as their content supplies
    the requisite information. See e.g., Nguyen v. Woodley, 
    273 S.W.3d 891
    , 898 (Tex.
    App.—Houston [14th Dist.] 2008, no pet.)(holding email constituted written notice
    that terminated a real-estate contract); Williams v. Colthurst, 
    253 S.W.3d 353
    , 359
    (Tex. App.—Eastland 2008, no pet.)(recognizing written amendment of lease
    30
    agreement could be made by email exchange, but concluding emails exchanged did
    not show a meeting of the minds).
    In this case, the jury heard evidence from Marinecorp and Chopper/Outlaw
    Country on the notice issue, and by its verdict, the jury demonstrated that it found
    Chopper and Outlaw Country’s evidence more credible than Marinecorp’s.
    Though Section 21.1 of the lease did not even require actual notice, Miller’s
    testimony that he complained in-person at Marinecorp’s offices of the major
    defaults (electrical capacity, air-conditioning, parking-lot lights, roof leaks) was
    evidence of actual notice. Miller also testified unequivocally that he made these
    same complaints by text and email to property manager Mirza in the hope of just
    getting the problems fixed. Miller even sent Mirza photographs of the leaking roof
    at Outlaw Country, but the roof was never fixed.
    Tibbs and Tones corroborated Miller’s testimony that Miller repeatedly used
    texts and emails to provide written notice to Marinecorp of its defaults under the
    lease, but Marinecorp did not remedy the issues despite promising to do so.
    Marinecorp’s property manager Mirza even admitted he received texts and emails
    from Miller, and confirmed that Miller came to the Marinecorp’s offices multiple
    times to complain.
    As to the air-conditioning units not being connected to an electrical source,
    after performing its test of all four units using electricity from its parking-lot meter,
    31
    Marinecorp apparently had three of the four units unhooked from any electrical
    source.   Electrician Hofelich testified he did not unhook the a/c, but saw
    Marinecorp’s maintenance man, Louis, working on the hook ups.
    Marinecorp was the only party with motive to disconnect all but one of the
    units—it had a duty to provide an electrical hook up but did not want to pay for the
    only electricity available at the time, that from its parking-lot meter. So while the
    one hooked-up unit provided Miller air-conditioning for the office space in Outlaw
    Country, and provided the impression the air-conditioning was fully operable,
    Miller realized at an attempted third grand opening in February 2011 that
    Marinecorp had failed in its duty to connect the 60 tons of air conditioning to a
    power source. Miller reported to Marinecorp that the a/c was not working. He
    texted Mirza, called the company president Nasser, and complained in person at
    Marinecorp’s office. (3 RR p. 185, l. 2-20).
    Because there is legally and factually sufficient evidence that Chopper and
    Outlaw satisfied the notice requirements under the lease agreements, Marinecorp’s
    first issue on appeal should be overruled. See City of 
    Keller, 168 S.W.3d at 827
    ;
    
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    .
    ISSUE TWO (RESTATED)
    After Marinecorp Breached the Implied Warranty of Suitability and
    Committed Deceptive Trade Practices in Regard to the Parking-Lot
    Lights, Leaking Roof, Electrical Wiring, and Air Conditioning,
    Chopper and Outlaw Country Lawfully Tried to Protect Their
    32
    Investment by Continuing Under the Leases and Asking Marinecorp
    to Fix the Problems. The Griffin Rule is Inapplicable Under the Facts
    of This Case.
    Jury Questions One and Two asked whether Marinecorp and Chopper or
    Outlaw, respectively, failed to comply with the lease agreement. Question Three
    asked the jury “Who failed to comply with the agreement first?”
    By its second issue, Marinecorp argues that the evidence adduced at trial
    was legally and factually insufficient to support the jury’s answer to Question
    Three. (MC Brief, p. 20). By its second issue, Marinecorp also argues Question
    Three was improper because Chopper and Outlaw chose to treat their respective
    leases as continuing after Marinecorp breached, thereby waiving any excuse for
    their own future nonperformance. 12
    12
    In its second issue, Marinecorp includes the following one line sub-argument:
    The trial court further erred in failing to disregard the jury’s answer to Question
    No. 3 because under the evidence and facts presented, this answer is immaterial,
    improper, and prejudicial to Marinecorp in that the jury’s answer prevented the
    jury from advancing to questions regarding damages to Marinecorp and its
    attorney’s fees.
    (MC Brief, p. 20). But no legal authority is presented in support of this sub-argument and thus it
    should be summarily overruled. See TEX. R. APP. P. 38.1. It should be noted, however, that
    Question Three did not prevent the jury from answering questions about Marinecorp’s alleged
    damages and attorney’s fees. Questions Seven through Nine and Twelve posed questions to the
    jury concerning these matters.
    33
    A.    Sufficient Evidence Supports the Jury’s Finding that Marinecorp
    Breached First
    Marinecorp cites no legal authority and offers no explanation or argument
    for its contention that the evidence is factually and legally insufficient to support
    the jury’s answer to Question Three. Accordingly, this Court need not address this
    argument. See TEX. R. APP. P. 38.1. To that extent, Issue 2 should be summarily
    overruled. See 
    id. In the
    alternative that this Court reaches the merits of this sufficiency point,
    as summarized above in the facts section of this brief, Miller, Tibbs, Tones and
    Marinecorp’s own a/c and electrical work men, Dang and Hofelich, all testified
    about how Marinecorp first breached its duty to provide parking-lot lights for
    Choppers, and electrical capacity, connected a/c and necessary roof repairs for
    Outlaw Country. This evidence was legally and factually sufficient to support the
    jury’s finding that Marinecorp breached the lease agreements first. See City of
    
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    .
    B.    Chopper and Outlaw Country were Allowed to Try to Protect their
    Investment by Working to Continue Under the Leases
    Marinecorp’s argument that Chopper and Outlaw waived Marinecorp’s first
    breach of the lease agreement fails for at least two reasons: (1) by law a tenant
    may attempt to protect his investment by continuing under a lease after a material
    breach of contract that violates the implied warranty of suitability in a commercial
    34
    lease; and (2) even assuming, for the sake of argument only, Chopper and Outlaw
    Country’s suit for breach of the implied warranty of suitability were completely
    isolated from their respective contract claims (or were waived under a contract
    theory to use Marinecorp’s language), Marinecorp first breached by arbitrarily
    changing the rent amounts due under the lease agreements and then locking
    Chopper and Outlaw Country out of their respective spaces even after they paid
    any outstanding rent balances.
    A commercial tenant’s performance under a contract may be excused by the
    landlord’s failure to comply with a material obligation of the lease or by the
    landlord’s breach of its implied warranty of suitability for commercial purposes.
    See e.g., Parts Indus. Corp. v. AVA Svs., Inc., 
    104 S.W.3d 671
    , 677 (Tex. App—
    Corpus Christi 2003, pet. denied). Marinecorp’s reliance on Long Trusts v. Griffin,
    
    222 S.W.3d 412
    (Tex. 2006)(per curiam) and similar cases is misplaced because
    these cases are off-point in this specific commercial-lease context. (MC Brief, pp.
    21-22).
    In a commercial lease, the lessor makes an implied warranty that the
    premises are suitable for the intended commercial purposes.         Italian Cowboy
    Partners, Ltd. v. Prudential Ins. Co. of Am., Inc., 
    341 S.W.3d 323
    , 340 (Tex.
    2011)(citing Davidow v. Inwood N. Prof'l Group—Phase I, 
    747 S.W.2d 373
    , 377
    (Tex. 1988)). “Specifically, a lessor impliedly warrants that at the inception of the
    35
    lease, no latent defects exist that are vital to the use of the premises for their
    intended commercial purpose.” 
    Id. A lessor
    is responsible for ensuring that
    “essential facilities will remain in a suitable condition.” 
    Id. To establish
    a breach
    of this warranty, a lessee must show that a latent defect in the facilities existed at
    the inception of the lease, that the facilities were vital to the use of the premises for
    the intended purposes, and that the lessor failed to repair the defect. See 
    id. The tenant’s
    obligation to pay rent and the lessor’s implied warranty of suitability are
    mutually dependent. 
    Davidow, 747 S.W.2d at 377
    .
    The case of A.V.A. Services, Inc. is legally and factually similar to the
    present case in many key respects—including that on appeal the landlord presented
    a mountain of nineteen meritless issues which the appellate court rejected in
    affirming the trial court’s judgment in favor of the lessee. See A.V.A. Svs., 
    Inc., 104 S.W.3d at 674-75
    . In A.V.A. Services, Inc., GPK Parts Industries leased to
    AVA a commercial warehouse located in Beaumont. 
    Id. The lease
    contained an
    option to purchase the space at the end of the lease term, which AVA planned to
    do. See 
    id. at 680.
    Despite assurances that the warehouse space would be in good
    condition and the landlord’s contractual obligation to maintain the roof in good
    repair, there were always massive roof leaks which led to electrical problems. 
    Id. Acting through
    the real estate agent who negotiated the lease agreement,
    GPK made some roof repairs but they were inadequate. 
    Id. at 676.
    After GPK
    36
    failed to repair the roof successfully, AVA had some of the roof repairs made, see
    
    id. at 680,
    but it could not afford the $75,000 cost of replacing the roof. See 
    id. at 676.
    A good portion of AVA’s inventory, machinery, equipment, and vehicles
    were damaged over a course of four years.           
    Id. at 684.
          AVA repeatedly
    complained and asked the landlord to make the necessary repairs. 
    Id. at 676.
    Under the lease contract, AVA sought reimbursement from GPK for the repairs it
    made, but in breach of the contract, GPK refused to reimburse. 
    Id. at 680.
    At trial and on appeal, GPK argued that once it breached by not reimbursing
    for the roof repairs, AVA had to elect to continue under the contract thereby
    waiving the roof repairs or terminate and sue for damages. See 
    id. Because AVA
    attempted to continue performance under the contract for years, GPK argued AVA
    waived its right to complain about the breach of the lease or breach of the implied
    warranty of suitability based on the condition of the roof. See 
    id. The appellate
    court disagreed and explained as follows that AVA did not
    have to make a Hobson’s choice of abandoning its investment and terminating the
    lease to sue:
    …AVA was not obligated to terminate the lease. GPK could not gain
    termination of the lease by simply denying AVA's right to have roof
    repair expenses reimbursed by GPK. The lease provided AVA the
    remedy to terminate the lease if GPK failed to repair the roof but did
    not require AVA to terminate the lease to recover the roof repair
    expense from GPK. AVA was not financially able to terminate the
    lease and lose its $40,000.00 investment in the lease to make it
    37
    suitable, and desired to purchase the property under the option to
    purchase. AVA had good faith reasons to not terminate the lease.
    
    Id. at 680.
    More recently, in Italian Cowboy Partners, the Supreme Court of
    Texas held, as in A.V.A. Services, that a commercial tenant may first try to work
    with the landlord to remedy a breach of the implied warranty of suitability without
    losing its right to later rescind the lease agreement or stop paying rent:
    …Were we to find the attempts made here to remedy the defect
    sufficient to foreclose the possibility of rescission because of
    ratification, similarly-situated commercial tenants would be placed in
    the difficult position of being pushed to abandon a lease at the first
    sign of any trouble, so as to avoid potentially being trapped in a lease
    of property containing a defect rendering it unsuitable for commercial
    purposes. This is unsound policy; we must allow a balance between
    making initial attempts to diagnose and remedy a premises defect
    while preserving the right to rescind a lease if such attempts are
    unsuccessful. Thus, we conclude that under the facts of this case,
    Prudential has not established that Italian Cowboy’s remaining in
    occupancy, while both parties made unsuccessful attempts to remedy
    the odor, gives rise to ratification of the lease contract after Italian
    Cowboy acquired knowledge of the defect.
    The trial court awarded both rescission of the lease and
    damages to restore Italian Cowboy to the position it would have been
    in absent Prudential's breach of warranty. Rescission of a commercial
    lease is indeed a proper remedy for breach of the implied warranty of
    suitability, as are such damages. See 
    Davidow, 747 S.W.2d at 377
          (stating that because a landlord breached the implied warranty of
    suitability, the tenant “was therefore justified in abandoning the
    premises and discontinuing his rent payments”); accord Gober v.
    Wright, 
    838 S.W.2d 794
    , 798-99 (Tex. App.—Houston [1st Dist.]
    1992, writ denied)(“[W]e upheld the jury's finding that the premises
    were unsuitable for their intended commercial purposes after June 2,
    1988. This finding relieved lessees from their obligation to pay any
    rent after that date.”), abrogated on other grounds by State Farm Fire
    & Cas. Co. v. Morua, 
    979 S.W.2d 616
    (Tex.1998).
    38
    Italian Cowboy Partners, 
    Ltd., 341 S.W.3d at 344-45
    .
    As in A.V.A. Services and Italian Cowboy Partners, Chopper and Outlaw
    Country were allowed to treat the leases as continuing after Marinecorp’s breach of
    contract and the implied warranty of suitability. Chopper and Outlaw Country had
    good faith reasons for doing so and it would be bad policy, and legal error to
    punish them for doing so. Miller and Tones had invested significant sums of
    money, and Miller significant physical labor as well, in renovating the two lease
    spaces, and opening businesses he hoped to later sell.
    It was only rational for Choppers to help its business and demand that
    Marinecorp repair the non-functioning parking-lot lights.        As it turned out,
    Marinecorp did not have the parking-lot lights attached to an electrical meter until
    September 2010 at best and after the inception of the lease, Marinecorp started
    claiming the lights did not function because of faulty underground wiring.
    Likewise, it was a sensible business decision for Outlaw Country to try to
    continue under the lease after Marinecorp breached its contractual and implied
    warranty obligations with regard to the air conditioning, electrical delays, and the
    roof. By contract and under the implied warranty of suitability, at the latest, these
    items should have been in good repair by the commencement date of the lease,
    November 1, 2010.
    39
    It was only after the commencement date, that the full extent of the roof’s
    disrepair became apparent. For example, at or around the time of the December
    29, 2010 down pour, a massive leak started on a new stage Miller built in Outlaw
    Country. Miller realized a piece of conveyor belt had been affixed to the roof with
    tar, and when it gave way, a new leak ensued.
    As to the air-conditioning, Marinecorp did not even attempt a test of the 60
    ton system until after November 1, and after performing the test using electricity
    from its parking-lot meter, it apparently had three of the four units unhooked from
    any electrical source.   So while the one hooked-up unit provided Miller air-
    conditioning for the office space in Outlaw Country, and provided the impression
    the air-conditioning was operable, when Miller attempted to run the full air-
    conditioning system for a February 2011 grand opening concert, featuring country
    star Tracy Lawrence, the air-conditioning was inadequate for the crowd.
    Because Chopper and Outlaw did not waive their rights (to withhold rent
    and later sue if necessary) by attempting to continue under the leases after
    Marinecorp’s breached, Jury Question Three—who breached first—was relevant
    and proper. See Italian Cowboy Partners, 
    Ltd., 341 S.W.3d at 344-45
    ; 
    Davidow, 747 S.W.2d at 377
    ; A.V.A. Svs., 
    Inc. 104 S.W.3d at 680
    . Marinecorp’s second
    issue should be overruled for this reason alone.
    40
    C.     Even under a Strict Contract Analysis, Jury Question Three was Proper
    because Griffin is inapplicable.
    Even setting aside the implied warranty of suitability for the sake of
    argument only and looking at the question exclusively as one of contract law, as
    Marinecorp apparently does in its second issue, Jury Question Three was proper in
    this case.13 (See MC Brief pp. 20-22). In other words, in the alternative, the
    Griffin rule on which Marinecorp relies can be considered in this case without
    finding Chopper and Outlaw Country waived any of Marinecorp’s breaches and
    the right to sue for breach. (MC Brief pp. 21-22). Griffin just does not apply the
    way Marinecorp suggests.
    The case of B&W Supply, Inc. v. Beckman, 
    305 S.W.3d 10
    (Tex. App.—
    Houston [1st Dist.] 2009, pet. denied), is illustrative of this point. B&W and the
    Beckmans contracted for B&W to perform remodeling work in several rooms of
    the Beckmans’ home for $60,000. 
    Id. at 14.
    The contract called for various
    progress payments throughout the project. 
    Id. In early
    2006, the Beckmans had
    paid B&W $30,000 and half of the project remained to be finished. 
    Id. Around this
    time a dispute arose leading B&W to cease all work on the project. The
    13
    Under the caselaw, when the same duty arises by express contract and implied warranty (e.g.,
    in this case, for Marinecorp to provide parking-lot lights, 60 tons of a/c, 1,000 amps of electrical
    capability and maintain roof in suitable condition), there can be a degree of legitimate overlap in
    the jury submission on the landlord’s breach of the implied warranty of suitability for
    commercial purposes and its breach of contract. In A.V.A. Services, the jury was instructed on
    both the implied warranty and breach of express contract, and the jury found that the landlord
    GPK “failed to comply with the lease” without specifying under which theory of relief. 
    See 104 S.W.3d at 676
    , 683.
    41
    Beckmans sued for breach of contract, breach of the Deceptive Trade Practices
    Act, and under various other theories.        
    Id. B&W counterclaimed
    under the
    contract for lost profits.   
    Id. “The parties
    presented conflicting evidence on
    whether the Beckmans fired B & W or whether B & W walked off the job.” 
    Id. Relying on
    Griffin, the Beckmans argued on appeal that B&W could not
    recover its lost profits under the contract because it treated the contract as
    continuing after the Beckman’s initial breach. See 
    id. at 19
    (citing 
    Griffin, 222 S.W.3d at 412
    ). The evidence showed that after Mr. Beckman asked B&W’s
    contractor its profit margin on the project, Mr. Beckman became upset and
    demanded line-item approval for the remainder of the work.          
    Id. When the
    contractor answered he could not comply with this request, Mr. Beckman told him
    he did not want him on his property and, in two different conversations, told the
    contractor not to come back to the job. 
    Id. The Beckmans
    did not pay B&W the
    third draw on the contract, which had already come due when the argument
    occurred. 
    Id. B&W concluded
    it had been fired and sued for its lost profits. 
    Id. As this
    Court explained, under Griffin, after a material breach of contract,
    the non-breaching party may be excused from future performance and may
    terminate and sue for the breach as long as the non-breaching party does not waive
    the breach by continuing its own performance under the contract as though the
    breach did not occur. 
    Id. at 19
    (citing 
    Griffin, 222 S.W.3d at 415
    ). This Court held
    42
    the Griffin rule was inapplicable to B&W’s breach-of-contract claim because
    B&W did not treat the contract as continuing, and the Beckmans did not point to
    any evidence that B&W believed that the contract was continuing. 
    Id. Instead, the
    evidence showed that B&W believed that it had been fired from the job and
    stopped work on the Beckmans’ house. 
    Id. Accordingly, it
    was proper for the trial
    court to submit to the jury whether B&W’s non-performance under the contract
    was excused and for B&W to recover its lost profits. 
    Id. at 18-19.
    In this case, as in Beckman, the Griffin rule is inapplicable to bar Chopper
    and Outlaw Country’s breach-of-contract claims and the related Jury Question
    Three regarding who breached first.14 In Beckman and in this case, the evidence
    was conflicting. Like the firing of the contractor in Beckman, after Marinecorp
    locked out Chopper and Outlaw Country (before the deadline to bring rents current
    and despite ultimately bringing rent payments current) Chopper and Outlaw
    Country could not continue performance under the respective leases. Marinecorp
    points to no evidence Chopper and Outlaw Country continued to operate in the
    leaseholds after the lockout. The Griffin rule is simply inapplicable under the facts
    of this case and Marinecorp’s second issue should be overruled.
    14
    Interestingly in this case, as to Outlaw Country, the jury found Marinecorp breached the lease
    agreement first (Question 3), Outlaw Country breached the lease (Question 4) and while its
    breach was not excused Outlaw Country did not owe Marinecorp rent (Question 7). Apparently,
    the jury found, as the evidence showed, that Outlaw Country caught up on any outstanding rent
    payments and did not owe Marinecorp any more rent.
    43
    ISSUE THREE (RESTATED)
    Sufficient Evidence Supported the Jury’s Finding that Marinecorp
    Failed to Mitigate its Alleged Damages
    By its third issue, Marinecorp argues the trial court should have rendered
    judgment for its alleged past and future rent damages from Chopper and Outlaw
    Country because there was “ample evidence” Marinecorp mitigated its alleged
    damages.    Specifically, Marinecorp argues the trial evidence is legally and
    factually insufficient to support the jury’s answers that Marinecorp failed to use
    reasonable care and diligence to mitigate its damages, if any, (Question No. 8) and
    that Chopper and Outlaw Country did not owe Marinecorp outstanding past or
    future rent (Question No. 7).
    Marinecorp cites no legal authority under issue three of its brief and has
    therefore arguably waived this issue. See TEX. R. APP. P. 38.1(i)(“The brief must
    contain a clear and concise argument for the contentions made, with appropriate
    citations to authorities and the record.”    However, issue three is also easily
    defeated on the merits. There was sufficient evidence to support the jury’s answer
    to both of these questions.
    Texas law requires a landlord claiming a tenant breached the lease to
    mitigate its damages by attempting to re-lease a vacant or abandoned property. See
    TEX. PROPERTY CODE ANN. § 91.006 (West 2015); see also Austin Hill Country
    Realty, Inc. v. Palisades Plaza, Inc., 
    948 S.W.2d 293
    , 299-300 (Tex.1997),
    44
    abrogated, in part, by TEX. PROP. CODE ANN. § 91.006. This duty to mitigate was
    first recognized in Texas because of the contractual nature of the landlord-tenant
    relationship and the general contract principle that one should mitigate his damages
    after a breach. See Austin Hill Country Realty, 
    Inc., 948 S.W.2d at 295-97
    . Later,
    the duty became a statutory duty as well. See e.g., TEX. PROP. CODE ANN. §
    91.006. The landlord is not required to lease the premises to just any willing tenant,
    but must make objective, good-faith efforts to lease to a replacement tenant who is
    suitable under the circumstances. See Austin Hill Country Realty, 
    Inc., 948 S.W.2d at 299
    ; see also White v. Harrison, 
    390 S.W.3d 666
    , 675-76 (Tex. App.—Dallas
    2012, no pet.)(holding landlord not required to re-lease to defaulting person whom
    first tenant gave possession, when landlord’s reasonable efforts successfully re-
    leased space to rent-paying tenant for remaining four years of lease agreement).
    In this case, even when Outlaw Country and Chopper brought their rent
    payments current in the face of fluctuating alleged rent amounts, Marinecorp
    insisted on locking these tenants out. The tenants did not abandon the leasehold.
    Marinecorp’s own property manager Mirza testified it is not financially
    desirable to have vacant space in the shopping center. Marinecorp’s post-lockout
    listing agent for the spaces, Fred Ghabriel, its Senior Property Manager, Wolochin,
    and Tibbs all testified that numerous prospective tenants were interested in leasing
    the space, but even through the time of trial, Marinecorp would not lease to anyone
    45
    apparently because it did not want any tenant that sold alcohol. (5 RR pp. 218-
    219). Marinecorp offered no evidence of a rationale for having the two spaces
    renovated as a bar and grill and dance hall, respectively, and then refusing to lease
    to a seller of alcohol. On this record, the jury had legally and factually sufficient
    evidence from which to conclude Marinecorp failed to mitigate its damages. See
    City of 
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    .
    The evidence was likewise sufficient to support the jury’s conclusion that
    Chopper and Outlaw Country did not owe Marinecorp past or future rent as
    damages.     First, Miller testified any outstanding rent amounts were brought
    current, but Marinecorp still went through with the lock out. (4 RR p. 140). This
    alone was sufficient to support the jury’s findings under Question No. 7. See City
    of 
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    .
    Legally, as discussed above in response to Issue 2 on appeal, Chopper and Outlaw
    Country were not obligated to pay outstanding rent after Marinecorp breached the
    implied warranty of suitability for commercial purposes and failed to timely cure
    its breaches. For these reasons, Marinecorp’s third issue on appeal should be
    overruled.
    ISSUE FOUR (RESTATED)
    Sufficient Evidence Supported the Jury’s Verdict. The Jury was not
    Required to Conclude that Outlaw Country Delayed its Own Opening.
    46
    By its fourth issue Marinecorp argues, Outlaw Country should not have been
    awarded damages under Jury Question No. 6 (breach of contract) because the
    evidence showed Outlaw Country delayed its own opening. This issue should be
    overruled because it is moot, and in the alternative, sufficient evidence supported
    the jury’s findings under Question 6 that Marinecorp breached its contract with
    Outlaw Country. There was ample evidence that Outlaw Country was ready to
    open on time, but Marinecorp failed to timely provide it electrical hook ups, a/c,
    and a good roof.
    First, as described below, under Issue 11, in its Modified Final Judgment,
    the trial court did not award Outlaw Country or Chopper damages for breach of
    contract. (Jury Question No. 6).      Second, as summarized above under the
    Statement of Facts, legally and factually sufficient evidence showed Marinecorp
    breached its lease with Outlaw Country and caused its delayed grand openings.
    Despite Marinecorp’s argument that Miller should have obtained a temporary
    construction meter to have electricity for permitting inspections, such a meter
    would have been inadequate to operate Outlaw Country and Miller testified he
    could have even obtained expedited permitting and opened on time had
    Marinecorp timely furnished electrical hook ups. (4 RR p. 137, l. 1-11). The jury,
    as the sole judge of the weight and credibility of the evidence, reasonably
    47
    concluded that Marinecorp breached its contract with Outlaw Country. See City of
    
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    .
    ISSUE FIVE (RESTATED)
    The Trial Court Correctly Rejected Marinecorp’s Proposed Jury
    Question Concerning Whether Outlaw Country Failed to Mitigate its
    Damages Because Neither the Law nor Evidence Supported Such a
    Question in This Case.
    By its fifth issue Marinecorp argues the trial court reversibly erred by not
    submitting Marinecorp’s proposed jury question on whether Outlaw mitigated its
    damages.    First, this issue should be overruled because Marinecorp cites no
    authority that a tenant has a duty to anticipatorily mitigate damages for a landlord’s
    impending breach of the implied warranty of suitability.
    Second, whether analyzed under tort or contract law, for the sake of
    argument only, Outlaw Country’s duty to mitigate could not have arisen before
    Marinecorp failed to timely provide electrical capacity to the Outlaw Country
    space. Marinecorp has not pleaded or cited any evidence in the record that Outlaw
    Country should have anticipated its breach of its duty to timely provide electricity.
    A.    Marinecorp cites no legal authority that a tenant has a duty to mitigate
    the landlord’s breach of the implied warranty of suitability especially
    before the landlord even commits the breach
    As discussed above, in response to Marinecorp’s second issue, Marinecorp
    had a duty under the implied warranty of suitability to provide Outlaw Country its
    electrical capacity, air conditioning, and a roof in good repair so that the premises
    48
    would be suitable for its intended commercial purposes. See e.g., Italian Cowboy
    Partners, 
    Ltd., 341 S.W.3d at 340
    . The jury in this case found that Marinecorp
    breached the implied warranty of suitability. (1 CR 417; Jury Question 14).
    Marinecorp cites no legal authority to support its argument under issue five
    that a tenant has a duty to mitigate or preemptively mitigate when the landlord
    breaches the implied warranty to provide electricity. See TEX. R. APP. P. 38.1. Nor
    does Marinecorp provide this Court any argument or legal authority for why it
    should apply such a duty under the facts of this case. See 
    id. Contrary to
    Marinecorp’s position, in Italian Cowboy Partners, the Supreme Court of Texas
    held that the landlord could not shift to the tenant its responsibility under the
    implied warranty of suitability (to repair sewage-line defects that caused a foul
    odor in the restaurant space); the tenant had not assumed responsibility for such a
    repair under the lease contract. 
    See 341 S.W.3d at 340-41
    .
    As real-estate broker Tibbs testified, Marinecorp was aware that Outlaw
    Country needed electricity to renovate the vacant Walgreen’s between signing the
    lease in September 2010 and the November 1, 2010 commencement date under the
    lease. However, November 1 would have been the absolute deadline for providing
    Outlaw Country functioning electrical capacity.     By issue five, Marinecorp is
    arguing that, amidst a massive $2 million renovation, Outlaw Country should have
    (1) anticipated before November that its commercial landlord Marinecorp would
    49
    fail to supply something as basic as electricity (when Miller had been able to repair
    and restore electricity to the neighboring Choppers space within a month or less of
    executing the lease); and (2) Outlaw Country should have attempted to obtain
    temporary construction electricity for the space for purposes of obtaining an
    occupancy permit for the space. Marinecorp points to no evidence in the record
    that Outlaw Country had notice Marinecorp would fail to supply electrical
    capability prior to the commencement date of the lease, and thus no duty to
    mitigate would have arisen, even if applicable. See e.g., Pulaski Bank & Trust Co.
    v. Texas Am. Bank/Fort Worth, N.A., 
    759 S.W.2d 723
    , 735 (Tex. App.—Dallas
    1988, writ denied)(“The [mitigation] doctrine is applicable only if the victim of the
    wrongdoer’s act has knowledge of the fact which makes avoidance of the
    consequences necessary, and if the damages can be avoided with only slight
    expense and reasonable effort.”).
    Even assuming, for the sake of argument only, the temporary construction
    meter would have supplied electricity for permitting inspections to occur, Outlaw
    Country’s space would have remained unusable for business without electricity
    post-construction.   This Court should overrule issue five and thereby reject
    Marinecorp’s invitation to impose a preemptive duty to mitigate a landlord’s
    breach of the implied warranty of suitability particularly when Marinecorp cites no
    legal authority for doing so and points to no evidence in the record that Outlaw
    50
    Country had notice prior to November 2010 that Marinecorp would breach its duty
    to provide electricity.
    ISSUES SIX THROUGH EIGHT (RESTATED)
    Issues Six Through Eight Should be Overruled Because Sufficient
    Evidence Showed Marinecorp Committed Deceptive Trade Practices
    and Separately Breached its Written Lease Agreements with Chopper
    and Outlaw. The record does not show Chopper and Outlaw Country
    attempted to bring a Property Code wrongful-eviction claim under the
    DTPA.
    By its sixth issue,15 Marinecorp argues Chopper and Outlaw’s claims
    constitute a breach of contract action, and not a DTPA case. This issue should be
    overruled because Chopper and Marinecorp pleaded and proved separate DTPA
    claims and a contract action in this case.16 By its eighth issue, Marinecorp argues
    there is “no evidence or insufficient evidence” of various DTPA elements, which
    will be addressed in turn below.17
    15
    Following the order of Marinecorp’s Brief to the extent practicable, Issues Six through Eight
    will be addressed together in one section, with subsections, because the issues are related. See
    TEX. R. APP. P. 38.2(a)(2)(“When practicable, the appellee's brief should respond to the
    appellant's issues or points in the order the appellant presented those issues or points.”).
    16
    Contrary to Marinecorp’s assertion in Issue 7, the record does not show Chopper and Outlaw
    Country attempted to bring a Property Code wrongful-eviction claim under the DTPA. (MC
    Brief, pp. 33–34). Thus, Issue 7 should be overruled as moot.
    17
    In its briefing of Issues 6 and 8(b), Marinecorp includes two lines of legally unsupported sub-
    argument:
    Finally, even though the claims of Appellees both sound in contract, no evidence,
    or insufficient evidence, exists supporting the measure of damages that they
    would have been entitled to upon meeting their burden, specifically proof of lost
    profits. (MC Brief, p. 32).
    51
    A.     Texas law recognizes that DTPA violations and breach of contract may
    arise in the context of a single case
    Texas law recognizes that a breach of contract and fraud/DTPA violations
    may arise in the same case, as has happened in prior reported landlord-tenant
    decisions. In Italian Cowboy Partners, while the plaintiff restaurant did not raise a
    DTPA claim per se, the Supreme Court of Texas recognized the plaintiff suing for
    rescission of the lease contract could also sue the landlord for fraudulently
    inducing it to enter the lease.      
    See 341 S.W.3d at 331
    . Specifically, the court held
    that a standard merger clause in a commercial lease does not insulate a landlord
    from a fraud action based on its false oral assurances made at the time of
    contracting. See 
    id. at 331-36.
    In Drury Southwest, Inc. v. Louie Ledeaux #1, Inc., the Fourth Court of
    Appeals held that along with its breach-of-contract action, a commercial tenant
    could raise a DTPA claim against its landlord for fraudulent misrepresentation that
    it could have any exterior sign it wanted for its business. 
    350 S.W.3d 287
    , 291
    Plaintiffs testified that Chopper was making a profit and Outlaw was breaking
    even. There was no evidence of any act or omission by Marinecorp that affected
    this net income. Appellees failed to meet this burden of proof relative to the
    DTPA element of causation. (MC Brief, p. 35).
    In addition, Marinecorp’s one-paragraph briefing of its sub-issue 8(b)(D) relating to
    causation under the DTPA contains no citation to legal authority. (MC Brief, pp. 34-35).
    Marinecorp did not adequately brief these sub-issues and thus the sub-issues have been
    waived on appeal. See TEX. R. APP. P. 38.1 (“The brief must contain a clear and concise
    argument for the contentions made, with appropriate citations to authorities and to the record.”).
    52
    (Tex. App.—San Antonio 2011, pet. denied). In the context of a fraud claim under
    the DTPA, the Fourth Court summarized succinctly the basic law of suing for
    breach of contract and a DTPA violation in a single suit as follows:
    A misrepresentation made during contract negotiations may form the
    basis of a DTPA claim if the defendant misrepresents a material fact
    about the goods or services sold to the plaintiff. Doe v. Boys Clubs of
    Greater Dallas, Inc., 
    907 S.W.2d 472
    , 478 (Tex. 1995); Church &
    Dwight Co. v. Huey, 
    961 S.W.2d 560
    , 567 (Tex. App.—San Antonio
    1997, pet. denied). However, the mere failure to perform a
    contractual obligation cannot form the basis of a DTPA claim.
    
    Id. B. Factually
    and legally sufficient evidence proved Chopper and Outlaw
    Country’s various DTPA claims and contract cause of action
    By Issue Eight, Marinecorp challenges the sufficiency of the evidence in the
    record to show the following elements of Chopper and Outlaw Country’s DTPA
    claims:
    (a) There was no evidence or insufficient evidence to establish that
    Marinecorp did not have an intention of fulfilling its promise when
    made.
    (b) There was no evidence or insufficient evidence that any
    representation by Marinecorp was a producing cause of damages to
    Chopper and Outlaw.
    (c) There was no evidence or insufficient to establish that
    Marinecorp’s actions were unconscionable.
    (d) There was no evidence of insufficient evidence to establish that
    Marinecorp breached an implied warranty, as the lease provisions
    stated the tenants accepted the property in its “as-is” condition.
    53
    (MC Brief, p. 30). Marinecorp also argues erroneously that there is no evidence
    or insufficient evidence that it “knowingly” violated the DTPA. (MC Brief, p.
    38).18
    In its live pleading at the time of trial, Chopper and Outlaw each sued for
    breach of contract, breach of the implied warranty of suitability in a commercial
    lease, and they also asserted DTPA claims for breach of the implied warranty and
    engaging in an unconscionable course of action. (Plaintiffs’ Fourth Amended
    Original Petition, p. 5-6) 19; See TEX. BUS. & COMM. CODE ANN. § 17.50(a)(2),
    (3)(West 2015). Chopper and Outlaw Country also sued Marinecorp for violating
    several subsections of section 17.46(b) of the DTPA. 20                 Chopper and Outlaw
    18
    In passing, Marinecorp seems to include in its argument under Issue 8 that Tony Miller, a
    contractor by trade, was too “sophisticated” to be a “consumer” entitled to the protections of the
    DTPA. (MC Brief pp. 36-37). This is a specious argument that one has to be a “bumpkin” to be
    protected under the DTPA. Consumer is actually defined as follows in the DTPA:
    (4) “Consumer” means an individual, partnership, corporation, this state, or a
    subdivision or agency of this state who seeks or acquires by purchase or lease,
    any goods or services, except that the term does not include a business consumer
    that has assets of $25 million or more, or that is owned or controlled by a
    corporation or entity with assets of $25 million or more.
    TEX. BUS. & COMM. CODE ANN. § 17.45(4). Miller meets this definition of consumer because he
    was an individual who sought or acquired by purchase or lease goods or services. Evidence
    concerning Miller’s personal assets was presented at trial and he did not have the assets to
    personally fund the renovations of the leaseholds in this case, which cost well under $25 million.
    (3 RR p. 161, l. 22-p. 162, l. 20).
    19
    Chopper and Outlaw are requesting that the Clerk of the trial court prepare and file in this
    cause a supplemental record that includes their Fourth Amended Original Petition which was
    filed in the trial court on December 12, 2013.
    20
    For example, Chopper and Outlaw Country alleged Marinecorp violated the following
    subsections of Section 17.46(b):
    54
    Country alleged Marinecorp’s DTPA violations were knowing and that they were
    entitled to treble damages as a result.21
    (9) advertising goods or services with intent not to sell them as advertised;
    …
    (12) representing that an agreement confers or involves rights, remedies, or
    obligations which it does not have or involve, or which are prohibited by law;
    …
    (24) failing to disclose information concerning goods or services which was
    known at the time of the transaction if such failure to disclose such information
    was intended to induce the consumer into a transaction into which the consumer
    would not have entered had the information been disclosed.
    See TEX. BUS. & COMM. CODE § 17.46(b)(9), (12), (24)(West 2015).
    21
    Section 17.50(b) of the DTPA sets forth treble damages for a knowing DTPA violation, and,
    in context, it reads as follows:
    (a) A consumer may maintain an action where any of the following constitute a
    producing cause of economic damages or damages for mental anguish:
    (1) the use or employment by any person of a false, misleading, or deceptive act
    or practice that is:
    (A) specifically enumerated in a subdivision of Subsection (b) of Section 17.46
    of this subchapter; and
    (B) relied on by a consumer to the consumer's detriment;
    (2) breach of an express or implied warranty;
    (3) any unconscionable action or course of action by any person; or
    …
    (b) In a suit filed under this section, each consumer who prevails may obtain:
    (1) the amount of economic damages found by the trier of fact. If the trier of fact
    finds that the conduct of the defendant was committed knowingly, the consumer
    may also recover damages for mental anguish, as found by the trier of fact, and
    the trier of fact may award not more than three times the amount of economic
    damages; or if the trier of fact finds the conduct was committed intentionally, the
    consumer may recover damages for mental anguish, as found by the trier of fact,
    and the trier of fact may award not more than three times the amount of damages
    for mental anguish and economic damages;
    …
    TEX. BUS. & COM. CODE ANN. § 17.50 (West 2015).
    55
    The DTPA defines “knowingly” as follows:
    “Knowingly” means actual awareness, at the time of the act or
    practice complained of, of the falsity, deception, or unfairness of the
    act or practice giving rise to the consumer's claim or, in an action
    brought under Subdivision (2) of Subsection (a) of Section 17.50,
    actual awareness of the act, practice, condition, defect, or failure
    constituting the breach of warranty, but actual awareness may be
    inferred where objective manifestations indicate that a person acted
    with actual awareness.
    
    Id. § 17.45(9).
    As demonstrated below, the evidence at trial was sufficient to allow
    the jury to infer that Marinecorp acted knowingly in perpetrating each of its DTPA
    violations. See e.g., Jim Walters Homes, Inc. v. Valencia, 
    690 S.W.2d 239
    , 242
    (Tex. 1985). In other words, the conduct was of a nature that a person would have
    had actual awareness of the character of his act at the time it was committed. See
    
    id. At trial,
    the evidence was also sufficient to show separate actions on
    Marinecorp’s part, committed at different points in time, that proved these causes
    of action. This case is unlike Tony Gullo Motors, I L.P. v. Chapa on which
    Marinecorp relies. See 
    212 S.W.3d 299
    , 304 (Tex. 2006). In Chapa, the plaintiff
    alleged only one injury—delivery of a base-model car instead of a premium-model
    car—and therefore could only recover under one of the several theories she
    pleaded. 
    Id. at 303.
    In this case, the jury questions were submitted in broad form,
    see TEX. R. CIV. P. 277, and one way in which the jury could have found the
    separate injuries and causes of action, under the evidence presented, is as follows.
    56
    1.    Breach of Implied Warranty of Suitability
    As set forth in the facts section of this brief and in response to Marinecorp’s
    second issue, the evidence at trial showed breach of the implied warranty of
    suitability in a commercial lease which is actionable under the DTPA. 
    Id. § 17.50(a)(2).
    Specifically, Marinecorp failed to provide Choppers parking-lot lights
    which was a common-area item for which it was responsible. See e.g., 
    Davidow, 747 S.W.2d at 374-75
    (recognizing failure to provide electricity some days, trashy
    parking lot, and non-working light fixtures in office space as breaching implied
    warranty of suitability); see also Gym-N-I Playgrounds, Inc. v. Snider, 
    220 S.W.3d 905
    , 910 (Tex. 2007)(discussing facts of Davidow and explaining “Davidow
    illustrates the purpose of the implied warranty of suitability.”). Marinecorp failed
    to provide Outlaw Country a repaired roof, electrical capability, and functional air
    conditioning.
    Marinecorp argues on appeal that “as-is” clauses in the leases absolved it of
    any duty under the implied warranty of suitability. (MC Brief, pp. 39–41). This is
    simply false. Snider is the leading case on the extent to which an as-is clause can
    negate the implied warranty of suitability in a commercial lease. See 
    id. In Snider,
    the Supreme Court of Texas explained that the language of each lease determines
    the extent to which the warranty is waived or not. 
    Id. at 910-11.
    Some leases, for
    example, contain as-is language combined with language that expressly sets forth
    57
    the lessor’s responsibility to perform certain maintenance and repairs (e.g., the
    roof). 
    Id. at 911.
    In A.V.A. Services, Inc., AVA accepted the warehouse in “as is” condition,
    but the lease expressly made the lessor responsible for maintaining the roof “in
    good repair.” 104 S.W3d at 681. Accordingly, the lessor was responsible for
    maintaining the roof in good repair both as a matter of contract and under the
    implied warranty of suitability. 
    Id. at 681-82.
    In this case, as in A.V.A. Services,
    Inc., Marinecorp expressly maintained responsibility for the items at issue in this
    lawsuit. In the Outlaw Country lease, immediately under the “as is” language in
    the form contract (lease Section 3.1), the parties excepted that Marinecorp would
    be responsible for installation of electrical service at 1,000 amps and providing 60
    tons of air conditioning. (1 CR 26).     The standard form language also specified
    that Marinecorp would remain responsible for maintaining the roof in good repair.
    (1 CR 31; Lease 7.1). In the Chopper lease, the form as-is language applied to the
    rented leasehold itself, but lease provided Marinecorp was responsible for common
    areas, including parking-lot lighting. (1 CR 27; Lease 5.1) Accordingly, under the
    lease language in this case, there is no waiver of the implied warranty of suitability
    that touches on the claims raised. See id.; see also 
    Snider, 220 S.W.3d at 911
    .
    58
    2.     Fraudulent Inducement
    A landlord’s fraudulent misrepresentation used to induce the tenant to enter
    a commercial lease is actionable under the DTPA. See e.g., Drury S.W., 
    Inc., 350 S.W.3d at 291
    . Because intent to defraud is not usually susceptible of direct proof,
    slight circumstantial evidence of fraud is sufficient to support a finding of
    fraudulent inducement. 
    Chapa, 212 S.W.3d at 305
    (citing Spolijaric v. Percival
    Tours, Inc., 
    708 S.W.2d 432
    , 435 (Tex. 1986)). In August 2010, Marinecorp
    fraudulently induced Outlaw Country to enter into an agreement to renovate and
    lease its vacant, former-Walgreens space. One way Marinecorp did this was by
    promising repeatedly to remedy the non-functioning parking-lot lights at Choppers
    “immediately.” Tibbs and Miller both testified this promise was key in Miller’s
    decision to renovate and lease Marinecorp’s larger second space. Marinecorp’s
    property manager and leasing agent Mirza testified that he knew Miller relied on
    the promise at the time of deciding whether to enter into the Outlaw Country lease
    with Marinecorp. Yet when Marinecorp represented to Miller that it would fix the
    lights immediately, it did not even have an electrical meter in place so that the
    lights could be turned on. The evidence showed that Marinecorp did not obtain a
    meter until much later, and that it did not hire a licensed electrician to address the
    problem.
    59
    3.      Unconscionable Course of Action
    Under the DTPA an “unconscionable action or course of action” is defined
    as “an act or practice which, to a consumer’s detriment, takes advantage of the lack
    of knowledge, ability, experience, or capacity of the consumer to a grossly unfair
    degree.” See TEX. BUS. & COM. CODE ANN. § 17.45 (West 2015). A finding that a
    defendant engaged in an unconscionable act or course of action is sufficient to
    support a DTPA action even in the absence of specific misrepresentations.
    Commercial Escrow Co. v. Rockport Rebel, Inc., 
    778 S.W.2d 532
    , 538 (Tex.
    App.—Corpus Christi 1989, writ denied).
    In this case, the evidence showed that Marinecorp entered into contracts
    with Chopper and Outlaw Country, respectively, under which Miller would
    dramatically improve and renovate its long-vacant spaces and lease them for his
    businesses.    Unbeknownst to Miller, Marinecorp would thereby be able to
    refinance the shopping center using a major bank, Wells Fargo, instead of having a
    related family company hold the note for the shopping center. (6 RR pp. 64, 72-
    73). But, Marinecorp disfavored tenants, like Choppers Sports Bar and Grill and
    Outlaw Country, which served alcohol. So, as its own property manager, Mirza,
    told realtor Tibbs, Marinecorp never really expected Miller’s businesses to succeed
    in the shopping center anyway. Tibbs testified that nothing Miller did seemed
    “good enough” for Marinecorp after the renovations were completed.            Tibbs
    60
    believed Marinecorp did not want Miller in business at the shopping center and did
    everything possible to get rid of him. Tibbs testified that in his twenty-year career
    as a commercial real-estate broker, he had never before seen anything like this.
    4.     Continued Unconscionable Course/Breach of Contract
    Later, Marinecorp breached the lease contracts by changing rent amounts
    and wrongfully locking Chopper and Outlaw Country out of their respective
    leaseholds. Specifically, the evidence at trial showed that even though Marinecorp
    had promised Outlaw Country two additional months’ “free rent” for December
    2011 and January 2012, it later went back on this written promise and demanded
    those rent amounts. Even after all funds for both spaces were tendered or paid,
    Marinecorp made new excuses and conditions for not accepting the payments and
    wrongfully locked out Chopper and Outlaw Country.            This lockout deprived
    Chopper and Outlaw Country of valuable possessions in their leaseholds and the
    opportunity to continue business operations.
    The lockout was the culmination of Marinecorp’s unconscionable course of
    action. That the same facts also amounted to a breach of contract does not
    constitute a double recovery in this case, because in its Modified Final Judgment,
    the trial court excluded damages for lost benefit of the bargain under both contract
    and DTPA, and excluded remedial and lost-income damages for breach of contract.
    Compare Jury Answers to Question Nos. 6 and 16 with Modified Final Judgment
    61
    (1 CR 409, 419-20, 589-91). In other words, the trial court’s judgment awards
    DTPA damages (based on the jury’s answer to Question No. 16), but it does not
    award any damages for breach of contract (based on the jury’s answer to Question
    No. 6). 22
    For the foregoing reasons and because Chopper and Outlaw Country proved
    its various, distinct DTPA and breach-of-contract causes of action by legally and
    factually sufficient evidence, see City of 
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    , Marinecorp’s sixth through eighth issues
    on appeal should be overruled.
    ISSUE NINE (RESTATED)
    The Trial Court’s Modified Final Judgment Awarding Prejudgment
    Interest Should be Affirmed Because Issue Nine is Unpreserved for
    Appellate Review.
    By its ninth issue on appeal, Marinecorp argues the trial court’s award of
    prejudgment interest in its Modified Final Judgment should be “appropriately”
    remitted or reversed because the time and date from which the calculation is made
    is too uncertain. (MC Brief, pp. 41-42). Because this contention was not urged
    below in the trial court, this Court should not consider it on appeal. See TEX. R.
    CIV. P. 166a(c)(“Issues not expressly presented to the trial court by written motion,
    22
    The trial court’s intent to award DTPA damages and not contract damages is also evident in
    the language of the Modified Final Judgment that immediately follows each actual-damage
    award. That language awards Chopper and Outlaw Country $11,000 each based on the jury’s
    findings of “knowing” DTPA violations. (1 CR 590).
    62
    answer or other response shall not be considered on appeal as grounds for
    reversal.”); D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 
    300 S.W.3d 740
    , 743
    (Tex. 2009); see also TEX. R. APP. P. 33.1(a)(1)(requiring record-showing that a
    claim was raised to preserve error for appellate review).
    In the alternative that the merits are of Issue 9 are reached, it should be
    observed that an award of pre-judgment interest for a prevailing tenant is proper in
    a landlord-tenant case. See e.g., Italian Cowboy 
    Partners, 341 S.W.3d at 347
    .
    Further, the amount of prejudgment interest awarded in this case is relatively
    modest. For example, the trial court did not calculate prejudgment interest from
    the time Marinecorp first breached the implied warranty of suitability in each lease.
    See e.g., 
    Gober, 838 S.W.2d at 798-99
    (“[W]e upheld the jury's finding that the
    premises were unsuitable for their intended commercial purposes after June 2,
    1988. This finding relieved lessees from their obligation to pay any rent after that
    date.”) Finally, the trial court specified a date certain, April 25, 2012, from which
    the prejudgment interest began to run.
    ISSUE TEN (RESTATED)
    On Appeal, Marinecorp has not Shown Entitlement to Damages for
    Alleged Breach of Guaranty.
    By its tenth issue, the Marinecorp argues the trial court should have awarded
    Marinecorp damages for Miller and Tones’ alleged breach of guaranty agreements.
    (MC Brief, pp. 42-43). However, this issue presents nothing for appellate review
    63
    because Marinecorp failed to support this issue with appropriate argument and
    citations to the record and legal authority. See TEX. R. APP. P. 38.1(i)(providing
    the brief must contain a clear and concise argument for the contentions made, with
    appropriate citations to authorities and to the record).23
    ISSUE ELEVEN (RESTATED)
    The Trial Court did not Award Cumulative Damages for DTPA
    Violations and Breach of Contract.
    By its eleventh issue, Marinecorp argues that in violation of the one-
    satisfaction rule, the trial court entered judgment for the following amounts of
    DTPA damages based on the jury’s answer to Question No. 16:
    --For Chopper: $110,000 for expenses and $100,000 for loss of use,
    and
    --For Outlaw: $150,000 for expenses and $140,000 for loss of use.
    (MC Brief, p. 44)(emphasis in original).
    As explained above, in response to Marinecorp’s eighth issue, there is not a
    “double recovery” in this case24, because in its Modified Final Judgment the trial
    court excluded damages for lost benefit of the bargain under both contract and
    DTPA, and excluded remedial and lost-income damages for breach of contract.
    23
    As noted above in footnote 12, apparently, the jury found, as the evidence showed, that
    Outlaw Country caught up on any outstanding rent payments and did not owe Marinecorp any
    more rent. (1 CR 410; Jury’s Answer to Question No. 10). Thus, there would have been nothing
    to pay on the Outlaw Country guaranty.
    24
    This case is therefore distinguishable from Tony Gullo Motors I, L.P., 
    212 S.W.3d 299
    , 314
    (Tex. 2006), and other cases Marinecorp cites in which it was necessary to reduce the damages
    awarded in the judgment because they constituted multiple payments, or overlapping awards, for
    a single injury.
    64
    Compare Jury Answers to Question Nos. 6 and 16 with Modified Final Judgment
    (1 CR 409, 419-420, 589-591). In other words, the trial court’s judgment awards
    DTPA damages (based on the jury’s answer to Question No. 16), but it does not
    award any damages for breach of contract (based on the jury’s answer to Question
    No. 6).
    Nor are the trial court’s awards of DTPA damages cumulative of one
    another. In the DTPA damages question (i.e., Question No. 16), “expenses” were
    defined as amounts “incurred…in constructing and equipping the lease premises in
    order to operate.” (1 CR 419). “Loss of use” was defined as “the reasonable value
    of the lease premises for the time [lessee] was unable to operate due to
    Marinecorp’s conduct.” (1 CR 419). There is no overlap between these two
    measures of damages, and these are the only actual damages awarded in the trial
    court’s Modified Final Judgment. (1 CR 589-591). Accordingly, Marinecorp’s
    eleventh issue should be overruled.
    In its eleventh issue, Marinecorp also includes an unpreserved, improperly
    briefed sub-issue, (MC Brief, p. 47), which it repeats in its thirteenth issue on
    appeal, (MC Brief, p. 60). By this sub-issue, Marinecorp argues that because the
    trial court, by apparent typographical error in Jury Question Sixteen, omitted the
    term “Outlaw” in its definitions of “Expenses” and “Loss of Use,” the jury was
    prohibited from finding damages for Outlaw Country on these elements, though
    65
    the trial court provided the jury question blanks for doing so.        (1 CR 419).
    Because this contention was not urged below in the trial court, this Court should
    not consider it on appeal. See TEX. R. CIV. P. 166a(c)(“Issues not expressly
    presented to the trial court by written motion, answer or other response shall not be
    considered on appeal as grounds for reversal.”); Markel Int’l Ins. 
    Co., 300 S.W.3d at 743
    ; see also TEX. R. APP. P. 33.1(a)(1)(requiring record-showing that a claim
    was raised to preserve error for appellate review). Further, Marinecorp did not
    adequately brief this sub-issue by citing supporting legal authority and thus it has
    been waived on appeal. See TEX. R. APP. P. 38.1 (“The brief must contain a clear
    and concise argument for the contentions made, with appropriate citations to
    authorities and to the record.”).
    ISSUE TWELVE (RESTATED)
    On Appeal, Marinecorp has not Shown Entitlement to Damages for
    Alleged Breach of a Promissory Note.
    By its twelfth issue, Marinecorp argues the trial court’s modified final
    judgment should have included $53,000 for Miller’s alleged breach of a
    promissory note to Marinecorp. However, this issue presents nothing for appellate
    review because Marinecorp failed to support this issue with appropriate argument
    and citations to legal authority. See 
    id. (providing the
    brief must contain a clear
    and concise argument for the contentions made, with appropriate citations to
    authorities). Marinecorp offers no legal justification for why Miller would owe it
    66
    $53,000 on a promissory note for alleged back rent on the Outlaw Country lease
    particularly when the jury found no outstanding rent was owed on the Outlaw
    Country lease. (1 CR 410; Jury’s Answer to Question No. 10).
    ISSUE THIRTEEN (RESTATED)
    Legally and Factually Sufficient Evidence Supports the Trial Court’s
    Judgment Awarding Actual Damages.
    By its thirteenth issue, Marinecorp challenges the legal and factual
    sufficiency of the evidence to support each jury finding awarding Chopper and
    Outlaw Country actual damages. (MC Brief, pp. 48-70). The scope of this issue is
    overbroad because, as discussed above under Issue 11, the trial court only entered
    judgment for actual damages on the jury’s verdict for “Loss of Use” and
    “Expenses” under the DTPA. This appeal is from the trial court’s Modified Final
    Judgment, not the portions of the jury’s verdict the trial court disregarded in
    entering judgment.    See e.g., TEX. R. APP. P. 25.1 (“The notice of appeal
    must…state the date of the judgment…appealed from.”)(emphasis added).
    To the extent Marinecorp challenges the sufficiency of the evidence to prove
    damage amounts not awarded in the trial court’s Modified Final Judgment, Issue
    13 is moot. An appellate court lacks jurisdiction to decide moot issues and render
    advisory opinions. See Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 
    789 S.W.2d 569
    , 570 (Tex. 1990); Meeker v. Tarrant Cty. Coll. Dist., 
    317 S.W.3d 754
    ,
    758 (Tex. App.—Fort Worth 2010, pet. denied); see also TEX. R. APP. P. 47.1
    67
    (“The court of appeals must hand down a written opinion that is as brief as
    practicable but that addresses every issue raised and necessary to final disposition
    of the appeal.”)(emphasis added).
    Appellees will respond herein to Issue 13 to the extent it is not moot. A
    tenant’s damages in a landlord-tenant dispute may be sufficiently proven by
    testimony or documents or a combination of both. See A.V.A. Svcs., 
    Inc., 104 S.W.3d at 684
    ; see also Italian Cowboy 
    Partners, 341 S.W.3d at 346
    (discussing
    sufficiency of testimony to prove tenant’s damages).
    The evidence is legally and factually sufficient to show Chopper’s
    “Expenses” “in constructing and equipping the lease premises in order to operate”
    were at least $110,000—the amount the jury awarded and the amount the trial
    court included in its Modified Final Judgment. (1 CR 420, 590). Tones testified
    about large checks he wrote, totaling well over $30,000, toward the renovation and
    set up of Choppers. (6 RR pp. 115-116; 12 RR pp. 1-47 (checks)).
    Choppers’ trial exhibits also include its “Weekly Expense” details that add
    up to well over $110,000 in expenses for labor and materials expended to build out
    and prepare Choppers to open for business. (See 10 RR p. 72; 11 RR pp. 12, 18,
    29, 54, 59, 67, 76). The Weekly Expense details, cited herein, span from May 22,
    2010 to August 4, 2010 and total over $147,000.
    68
    On their face, the Weekly Expense details are Choppers’ book-keeping
    records and beneath each detail is a stack of receipts that corresponds to the listed
    expenses. For example, there is a furniture invoice for Choppers’ furniture (e.g.,
    tables for customers to use) from AAA Contract Furniture that is stamped “Paid”
    for $16,156.31. (10 RR p. 83).
    The record contains similar evidence25 of Outlaw Country’s “Expenses,”
    sufficient to justify the award of $150,000 in the Modified Final Judgment. (1 CR
    420, 590).      Commercial Real Estate Broker Tibbs testified that Miller’s
    renovations of the former Walgreens to transform it into the Outlaw Country venue
    cost about $2,000,000. Miller testified that, together, he and investor Tones spent
    over $550,000 out of pocket on the renovations for Outlaw Country, and
    renovations and inventory together totaled over $2,000,000. (3 RR p. 162, l. 15-
    20; 4 RR p. 73, l. 20-p. 74, l. 16). In addition, Outlaw Country’s trial exhibits
    include weekly “Expense” details that add up to well over $150,000 in expenses
    for labor and materials expended to build out and prepare Outlaw Country to open
    for business. (See 12 RR pp. 48-57). The Expense details cited herein total over
    $174,000 expended between September 18, 2010 and November 27, 2010 to build
    out and set up Outlaw Country to open for business. As with Choppers, the record
    also contains extensive supporting receipts that correspond to the Expense details.
    25
    The format of the expense reports for Choppers and Outlaw Country is slightly different,
    apparently reflecting use of different software.
    69
    For example, Outlaw Country paid electrician Hofelich a down payment of $7,500
    for one (of many) invoices for material and labor on October 4, 2010. (19 RR p.
    64).
    Miller testified that in late 2011, Chopper was operating profitably and
    Outlaw Country was breaking even. (4 RR 82; 6 RR p. 134, l. 2). “Loss of Use”
    was defined as “the reasonable value of the lease premises for the time [tenant]
    was unable to operate due to Marinecorp’s conduct.” (1 CR 419). Around the
    time Chopper first opened, its business account at Amegy Bank had a balance of
    just $3,189. (15 RR p. 84). But after Choppers opened for business in July 2010,
    its monthly deposits steadily increased and even exceeded $30,000 and $50,000 a
    month for multiple months in 2011. (16 RR pp. 2, 10, 18, 28, 38, 50, 70).
    At the end of December 2011, Outlaw Country’s bookkeeping records
    showed earnings of approximately $9,100 on a typical night of sales. (PX 54; 10
    RR pp. 10-20). Large events, like the Tracy Lawrence concert, were budgeted to
    bring in over $25,000 profit in a single night, if successful. (3 RR p. 184). These
    events with Nashville acts earned a cover price for the concert ticket, in addition to
    beverage sales. (3 RR p. 150; PX 30; 9 RR p. 64).
    Outlaw Country had its own separate business account with Amegy Bank.
    (17 RR p. 2). Before Outlaw Country had electricity and opened, its account
    balance as of December 31, 2010 was $6.23. (17 RR p. 2). By the end of February
    70
    2011, Outlaw Country regularly had high monthly deposits for 2011, typically
    between $30,000 and $54,000 per month. (17 RR pp. 17, 25, 33, 39, 45, 51, 57, 65,
    70).
    While Marinecorp questions the credibility of the damages testimony and
    accounting records, it was the jury’s role to determine the weight and credibility to
    give the evidence. As summarized above, the trial evidence was legally and
    factually sufficient to support the trial court’s Modified Final Judgment awarding
    Choppers and Outlaw Country modest actual damages for “loss of use” and
    “expenses.” See City of 
    Keller, 168 S.W.3d at 827
    ; 
    Cain, 709 S.W.2d at 176
    ; 
    Pool, 715 S.W.2d at 635
    . Accordingly, Marinecorp’s thirteenth issue on appeal should
    be overruled.
    CONCLUSION & PRAYER
    For the foregoing reasons, Appellees Miller, Chopper, Outlaw Country, and
    Tones pray that this Court affirm the trial court’s Modified Final Judgment in all
    respects.
    71
    Respectfully Submitted,
    THE AKERS FIRM
    By:         /S/ Brock C. Akers
    Brock C. Akers
    State Bar No. 00953250
    3401 Allen Parkway, Suite 101
    Houston, Texas 77019
    Telephone: (713) 877-2500
    Facsimile: (713) 583-8662
    bca@akersfirm.com
    ATTORNEY FOR APPELLEES, THE
    CHOPPER GROUP, LLC,
    BACKWOODS COUNTRY CLUB,
    LLC AND TONY MILLER
    AND
    THE COCHELL LAW FIRM, PC
    By:         /S/ Stephen R. Cochell
    Stephen R. Cochell
    State Bar No. 24044255
    5555 W. Loop S., Suite 200
    Bellaire, Texas 77401
    Telephone: (832) 767-1065
    Facsimile: (832) 767-1686
    srcochell@gmail.com
    ATTORNEY FOR APPELLEE,
    KYLE TONES
    72
    CERTIFICATE OF COMPLIANCE
    The undersigned certifies that the above and foregoing Appellees’ Brief
    complies with the word count limitations specified in TEX. R. APP. 9.4 and contains
    17,914 words.
    /S/ Brock C. Akers
    Brock C. Akers
    73
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing has been
    forwarded to all counsel of record via electronic service as follows:
    Macon D. Strother
    The Strother Law Firm
    4306 Yoakum Boulevard, Suite 560
    Houston, Texas 77006
    mstrother@strotherlawfirm.com
    On this 30th day of November, 2015.
    /S/ Brock C. Akers
    Brock C. Akers
    74