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Click here for the full text of this decision FACTS:Volume Millwork leased a hangar at the West Houston Airport Subdivision, owned by West Houston Airport Corp., from Pelican Importing & Exporting Co. in June 1997. Volume’s lease was for give years, with monthly rental payments of $3,600. On Nov. 29, 2001, Pelican transferred the property and Volume’s lease to the Woodrow V. Lesikar Family Trust. On Nov. 30, Woody Lesikar, in his capacity as WHAC’s manager, notified Volume that WHAC would now be collecting the rent payments that Volume had been paying to Pelican. A week later, WHAC notified Volume that it was in default under the lease terms and that it would have to vacate the premises unless it complied with the lease. When Volume did not vacate the building, WHAC filed a forcible entry and detainer action in justice court. Volume did not appear so WHAC was awarded possession in a default judgment. Volume appealed to the County Civil Court No. 1 of Harris County, where WHAC against prevailed. WHAC also won on claims for damages for unpaid holdover rent and attorneys’ fees. The county court awarded WHAC $17,113 for holdover rent and property tax differentials, plus $28,623 in attorneys’ fees under Texas Property Code �24.003 and Texas Civil Practice & Remedies Code �38.001(8). Volume appealed. HOLDING:Affirmed in part; dismissed in part. The court addresses Volume’s first issue challenging WHAC’s capacity to evict Volume through a forcible entry and detainer action. The court notes that forcible entry and detainer actions provide a “speedy, summary and inexpensive” determination of rights to possession, and that in keeping with this purpose, the legislature has limited appellate court jurisdiction in these types of cases. Under Texas Property Code �24.007, “A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only.” Since Volume was using the premises for commercial purposes, not “residential purposes only,” the county court’s judgment stands. The court says the same analysis applies to Volume’s challenge to the order granting possession to WHAC. The possession order stems from the forcible entry and detainer action, and the county court’s judgment cannot be appealed to this court. The court note’s Volume’s challenge to the county court’s jurisdiction to hear the forcible entry and detainer action as a new trial. Volume claims the county court could not hear the case because the amount of the judgment the county court awarded exceeds the $5,000 amount in controversy limit on county court actions. The court distinguishes this case from Color Tile Inc. v. Ramsey, 905 S.W.2d 620 (Tex.App. – Houston [14th Dist.] 1995, no writ), which involved a challenge to county court jurisdiction based on the amount awarded in final judgment. Unlike this case, the Color Tile case was an action for the balance due on a flooring contract that was under the amount of controversy, but with the addition of new counterclaims, the amount in controversy rose above the statutory limit. This is a forcible entry and detainer action, which has been exempted by Texas Rule of Civil Procedure 749 from the amount in controversy limits. Furthermore, Texas Rule of Civil Procedure 752 permits the prevailing party in a de novo trial in county court to recover “damages for withholding or defending possession of the premises during the pendency of the appeal.” This could also include the award of attorneys’ fees, the court adds. “Having sued for possession and prevailed in justice court, [WHAC] properly relied on rule 752 to pursue its additional damages, reasonable attorney’s fees, and costs, as authorized by that rule and section 24.007 of the Property Code, without regard to the amount-in-controversy limitation of justice court.” The court next reviews the sufficiency of the evidence underlying the award of damages and attorneys’ fees. Although not set out in findings of fact and conclusions of law, the trial court impliedly concluded Volume breached a valid lease by holding over in its tenancy after the lease term expired and that WHAC was entitled to holdover damages in accordance with the lease terms. The damages total derived from unpaid holdover rent after the lease expired, based on a $3,600 monthly rental, unpaid delinquency fees, and an increase in property taxes. All of these were specified in the lease, and it is undisputed that Volume owed holdover rent from July 1, 2002, when the lease expired by its own terms, until WHAC got possession. The court then observes that because WHAC won its breach-of-contract claim, the county court had a mandatory duty to award attorneys’ fees under Civ. Rem. & Prac. Code ch. 39, not to mention the fact that the lease authorized recovery of attorneys’ fees. The court rejects Volume’s arguments that the trial court improperly relied on WHAC’s lawyer’s testimony since the lawyer used what Volume calls excluded billing records to support his testimony. The court points out that Volume never secured a ruling on its objection to the admissibility of the lawyer’s testimony. The court then upholds the amount of attorneys’ fee awarded. WHAC’s evidence, even though presented solely through its attorney, an interested witness, was nonetheless “clear, positive, direct, free of inconsistencies and contradictions, or other circumstances that might tend to case suspicion on that testimony.” Additionally, Volume did not offer contrary evidence to challenge what the attorney said. OPINION:Elsa Alcala, J.; Radack, C.J., Alcala and Bland, J.J.

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