APPELLEE

This is an attempted appeal from a forcible detainer action. The trial court awarded Vaughn House, Inc., appellee, sole possession of commercial premises it had leased to Ja-Guy, Limited Partnership, appellant. The trial court also awarded Vaughn House damages for unpaid rent and attorney's fees. Ja-Guy appeals, contending that the trial court erred in (1) granting Vaughn House any relief because Vaughn House, not Ja-Guy, breached the lease; (2) not determining that Vaughn House had breached express and implied warranties about the leased premises; (3) not allowing Ja-Guy to remain in possession of the leased premises on the condition that Ja-Guy conform to the lease; and (4) granting Vaughn House attorney's fees. Vaughn House has filed a motion to dismiss the appeal for want of jurisdiction. We will grant the motion.

Ja-Guy began leasing commercial space from Vaughn House in January 1992. Ja-Guy's operations at the leased premises included check-cashing services, an activity that violated City of Austin zoning laws. Ja-Guy unsuccessfully petitioned the city to re-zone the leased premises. In May 1993 the city notified Vaughn House of Ja-Guy's zoning violations and threatened legal action against Vaughn House if the illegal operations continued. Vaughn House informed Ja-Guy that its illegal operations violated the lease agreement, and that Vaughn House would terminate the lease if Ja-Guy did not comply with Austin zoning laws. ⁽¹⁾ When Vaughn House received another notice from the city regarding Ja-Guy's illegal check-cashing operations, it terminated the lease and demanded that Ja-Guy vacate the leased premises.

When Ja-Guy failed to vacate, Vaughn House filed suit in justice court. After a trial on the merits, the justice court awarded Vaughn House possession of the leased premises, damages for unpaid rent, and attorney's fees. Ja-Guy appealed to the county court at law. After a trial de novo, the county court awarded Vaughn House the same relief: possession, damages for unpaid rent, and attorney's fees.

In a forcible detainer action, the issue of possession is not appealable where, as here, the premises are used for commercial purposes. West Anderson Plaza v. Feyznia, 876 S.W.2d 528, 536 (Tex. App.Austin 1994, no writ). The Texas Property Code provides: "A final judgment of a county court in a forcible entry and detainer suit or a forcible detainer suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only." Tex. Prop. Code. Ann. § 24.007 (West Supp. 1994). In the present case, all of Ja-Guy's points of error relate to the issue of possession. Accordingly, the appeal must be dismissed.

Ja-Guy's first two points of error contend, respectively, that Vaughn House breached the lease agreement and that Vaughn House made certain warranties about the suitability of the leased premises for Ja-Guy's intended purposes. In this case, these points are material only to the issue of whether Ja-Guy could rightfully be evicted, i.e., whether Ja-Guy retained the right to possess the leased premises. Ja-Guy's third point of error contends that the trial court erred in not allowing Ja-Guy to continue to occupy the leased premises as long as he complied with Austin zoning rules. This point obviously relates to the issue of possession.

In its final point of error, Ja-Guy points out that only a "prevailing landlord" may recover attorney's fees. Ja-Guy then argues that since Vaughn House should not have prevailed on the possession issue, it also should not have recovered attorney's fees. ⁽²⁾ See Tex. Prop. Code Ann. § 24.006(b) (West Supp. 1994). While this point of error does not directly ask us to reverse the trial court's decision on the possession issue, it would certainly require us to review that decision and determine whether it was correct. We believe section 24.007 prohibits us from doing this. See West Anderson Plaza, 876 S.W.2d at 536-37.

We grant Vaughn House's motion and dismiss the appeal for want of jurisdiction.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll Not Participating

Appeal Dismissed for Want of Jurisdiction on Appellee's Motion

Filed: November 23, 1994

Do Not Publish

1.   Paragraph 9 of the lease agreement provided, "Tenant shall, at its own expense, comply with all laws, orders, and requirements of all governmental entities with reference to the use and occupancy of the leased premises."

2.   Ja-Guy's argument supporting its fourth point of error consists entirely of the following sentence: "The Appellant's position is that the Appellee was not a 'prevailing landlord' because of its breach of the lease by the insertion of the illegal purpose." We interpret this statement to mean that Vaughn House was not entitled to attorney's fees because it was not entitled to prevail on the possession issue.