1221 Eldridge Road, Inc. v. Life Changing Ministries and Fellowship, Inc. Eric Stephens, and Jennifer Stephens
This text of 1221 Eldridge Road, Inc. v. Life Changing Ministries and Fellowship, Inc. Eric Stephens, and Jennifer Stephens (1221 Eldridge Road, Inc. v. Life Changing Ministries and Fellowship, Inc. Eric Stephens, and Jennifer Stephens) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 13ccv050162 FIRST COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 2:16:49 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00893-CV ______________________________________________________________________________ FILED IN IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS ______________________________________________________________________________ 1/20/2015 2:16:49 PM CHRISTOPHER A. PRINE 1221 ELDRIDGE ROAD, INC., Clerk APPELLANT
VS.
LIFE CHANGING MINISTRIES AND FELLOWSHIP, INC., ERIC STEPHENS, AND JENNIFER STEPHENS, APPELLEES
______________________________________________________________________________
APPELLANT’S BRIEF
______________________________________________________________________________
Respectfully submitted,
LAW OFFICES OF STEVEN TUAN PHAM
2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com
By: /S/ Steven Tuan Pham Steven Tuan Pham Texas State Bar #24052899 Vy-Vivian Nguyen Texas State Bar #24073383 Attorneys for Appellant, 1221 Eldridge Road, Inc.
i IDENTITY OF PARTIES AND COUNSELS
APPELLANT: 1221 ELDRIDGE ROAD, INC
COUNSEL FOR APPELLANT: Steven Tuan Pham Law Offices of Steven Tuan Pham 2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com Trial and Appellate Attorney
Vy-Vivian Nguyen 15721 Park Row Drive #100 Houston, TX 77084 Phone: (713) 714-0100 FAX: (713) 714-0101 Email: vivian@vnguyenlaw.com Trial and Appellate Attorney
APPELLEES: LIFE CHANGING MINISTRIES AND FELLOWSHIP, INC., ERIC STEPHENS AND JENNIFER STEPHENS
COUNSEL FOR APPELLEES: Ted A. Cox Ted A Cox, P.C 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Fax: (713) 956-8485 Email: ted@tedacox.com Appellate Attorney
Jennifer Fleck Ted A Cox, P.C 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Fax: (713) 956-8485 Email: jennifer@tedacox.com Trial and Appellate Attorney
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL …………………………………..…….…..………ii
INDEX OF AUTHORITIES ......................................................................................................v-vi
STATEMENT OF THE CASE ....................................................................................................vii
ISSUES PRESENTED ................................................................................................................xiii
(1) The trial court erred in denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that all jury questions regarding Appellant’s breach of contract, breach of the covenant of quiet enjoyment and constructive eviction should have been omitted from the questions presented to the jury.
(2) The trial court abused its discretion by failing to disregard the jury’s answers because Appellees produced no more than a scintilla of evidence proving that Appellant breached the 1255 Eldridge and the 1243 Eldridge lease agreements.
(3) The trial court abused its discretion by failing to disregard the jury’s answers regarding Appellant’s breach of the implied covenant of quiet enjoyment and Appellant’s constructive eviction because the evidence was conclusive that, as a matter of law, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellee from the leased premises.
(4) The trial court abused its discretion by failing to disregard the jury’s answers because the evidence was conclusive as a matter of law that even if both parties breached, Appellees breached first by virtue of their monetary and non-monetary defaults; and, therefore, Appellant is entitled to damages and attorney’s fees as the result of Appellees’ breach.
(5) The trial court erred by denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that Appellant did not breach the Leases; and, therefore, as a matter of law the jury’s questions regarding Appellant’s breach of contract, and breach of covenant of quiet enjoyment and constructive eviction should have been omitted.
STATEMENT OF FACTS ......................................................................................................ix-xii
SUMMARY OF THE ARGUMENT .........................................................................................xiii
ARGUMENTS...........................................................................................................................1-26
STANDARD OF REVIEW....……………………..…………………...…………………………1
iii Issue 1: The trial court erred and abused its discretion by denying Appellant’s Motion To Disregard Jury’s Questions because there is no evidence that supports the jury’s answers to questions 2 and 5 answering in the affirmative that Appellant breached the lease agreements……………………………………………………………………………...2-8
Issue 2: The trial court erred and abused its discretion by denying Appellant’s Motion To Disregard Jury’s Questions because the evidence was conclusive, as a matter of law, that even if the jury finds both parties breached, Appellee have breached first; and thus, the evidence does not support the jury’s answers to questions 3 and 6………………………………………………………………………..………………8-13
Issue 3: The trial court abused its discretion by failing to disregard the jury’s answers regarding Appellant’s breach of the implied covenant of quiet enjoyment and Appellant’s constructive eviction because the evidence was conclusive as a matter of law that, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellee…………………..……………………………13-20
Issue 4: The trial court erred and abused its discretion by failing to grant Appellant’s Motion To Disregard Jury’s Questions because the evidence was conclusive as a matter of law that Appellees breached the two lease agreements; and thus, Appellant is entitled to damages and attorney’s fees. Therefore, the evidence does not support the jury’s answers to questions 7, 8, and 11……….……………………………………………20-21
Issue 5: The trial court erred by denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that Appellant did not breach the contracts; and, therefore, as a matter of law, jury’s question regarding Appellant’s breach of contract, and breach of covenant of quiet enjoyment and constructive eviction should have been omitted…..……………………………………………….…..……21-26
PRAYER .......................................................................................................................................27
CERTIFICATE OF COMPLIANCE ...........................................................................................28
CERTIFICATE OF SERVICE………….....................................................................................29
APPENDIX....................................................................................................................................30
iv INDEX OF AUTHORITIES
CASES
Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991)…………….………2, 13
Briargrove Shopping Center Joint Venture, Inc. v. Vilar, Inc., 647 S.W.2d 329, 334 (Tex.App. Houston [1st Dist.] 1982, no writ)……………………………………………………………….14
Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998)…………………………….…….2
Cayton v. Moore, 224 S.W.3d 440
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 13ccv050162 FIRST COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 2:16:49 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00893-CV ______________________________________________________________________________ FILED IN IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS ______________________________________________________________________________ 1/20/2015 2:16:49 PM CHRISTOPHER A. PRINE 1221 ELDRIDGE ROAD, INC., Clerk APPELLANT
VS.
LIFE CHANGING MINISTRIES AND FELLOWSHIP, INC., ERIC STEPHENS, AND JENNIFER STEPHENS, APPELLEES
______________________________________________________________________________
APPELLANT’S BRIEF
______________________________________________________________________________
Respectfully submitted,
LAW OFFICES OF STEVEN TUAN PHAM
2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com
By: /S/ Steven Tuan Pham Steven Tuan Pham Texas State Bar #24052899 Vy-Vivian Nguyen Texas State Bar #24073383 Attorneys for Appellant, 1221 Eldridge Road, Inc.
i IDENTITY OF PARTIES AND COUNSELS
APPELLANT: 1221 ELDRIDGE ROAD, INC
COUNSEL FOR APPELLANT: Steven Tuan Pham Law Offices of Steven Tuan Pham 2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com Trial and Appellate Attorney
Vy-Vivian Nguyen 15721 Park Row Drive #100 Houston, TX 77084 Phone: (713) 714-0100 FAX: (713) 714-0101 Email: vivian@vnguyenlaw.com Trial and Appellate Attorney
APPELLEES: LIFE CHANGING MINISTRIES AND FELLOWSHIP, INC., ERIC STEPHENS AND JENNIFER STEPHENS
COUNSEL FOR APPELLEES: Ted A. Cox Ted A Cox, P.C 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Fax: (713) 956-8485 Email: ted@tedacox.com Appellate Attorney
Jennifer Fleck Ted A Cox, P.C 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Fax: (713) 956-8485 Email: jennifer@tedacox.com Trial and Appellate Attorney
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL …………………………………..…….…..………ii
INDEX OF AUTHORITIES ......................................................................................................v-vi
STATEMENT OF THE CASE ....................................................................................................vii
ISSUES PRESENTED ................................................................................................................xiii
(1) The trial court erred in denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that all jury questions regarding Appellant’s breach of contract, breach of the covenant of quiet enjoyment and constructive eviction should have been omitted from the questions presented to the jury.
(2) The trial court abused its discretion by failing to disregard the jury’s answers because Appellees produced no more than a scintilla of evidence proving that Appellant breached the 1255 Eldridge and the 1243 Eldridge lease agreements.
(3) The trial court abused its discretion by failing to disregard the jury’s answers regarding Appellant’s breach of the implied covenant of quiet enjoyment and Appellant’s constructive eviction because the evidence was conclusive that, as a matter of law, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellee from the leased premises.
(4) The trial court abused its discretion by failing to disregard the jury’s answers because the evidence was conclusive as a matter of law that even if both parties breached, Appellees breached first by virtue of their monetary and non-monetary defaults; and, therefore, Appellant is entitled to damages and attorney’s fees as the result of Appellees’ breach.
(5) The trial court erred by denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that Appellant did not breach the Leases; and, therefore, as a matter of law the jury’s questions regarding Appellant’s breach of contract, and breach of covenant of quiet enjoyment and constructive eviction should have been omitted.
STATEMENT OF FACTS ......................................................................................................ix-xii
SUMMARY OF THE ARGUMENT .........................................................................................xiii
ARGUMENTS...........................................................................................................................1-26
STANDARD OF REVIEW....……………………..…………………...…………………………1
iii Issue 1: The trial court erred and abused its discretion by denying Appellant’s Motion To Disregard Jury’s Questions because there is no evidence that supports the jury’s answers to questions 2 and 5 answering in the affirmative that Appellant breached the lease agreements……………………………………………………………………………...2-8
Issue 2: The trial court erred and abused its discretion by denying Appellant’s Motion To Disregard Jury’s Questions because the evidence was conclusive, as a matter of law, that even if the jury finds both parties breached, Appellee have breached first; and thus, the evidence does not support the jury’s answers to questions 3 and 6………………………………………………………………………..………………8-13
Issue 3: The trial court abused its discretion by failing to disregard the jury’s answers regarding Appellant’s breach of the implied covenant of quiet enjoyment and Appellant’s constructive eviction because the evidence was conclusive as a matter of law that, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellee…………………..……………………………13-20
Issue 4: The trial court erred and abused its discretion by failing to grant Appellant’s Motion To Disregard Jury’s Questions because the evidence was conclusive as a matter of law that Appellees breached the two lease agreements; and thus, Appellant is entitled to damages and attorney’s fees. Therefore, the evidence does not support the jury’s answers to questions 7, 8, and 11……….……………………………………………20-21
Issue 5: The trial court erred by denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that Appellant did not breach the contracts; and, therefore, as a matter of law, jury’s question regarding Appellant’s breach of contract, and breach of covenant of quiet enjoyment and constructive eviction should have been omitted…..……………………………………………….…..……21-26
PRAYER .......................................................................................................................................27
CERTIFICATE OF COMPLIANCE ...........................................................................................28
CERTIFICATE OF SERVICE………….....................................................................................29
APPENDIX....................................................................................................................................30
iv INDEX OF AUTHORITIES
CASES
Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991)…………….………2, 13
Briargrove Shopping Center Joint Venture, Inc. v. Vilar, Inc., 647 S.W.2d 329, 334 (Tex.App. Houston [1st Dist.] 1982, no writ)……………………………………………………………….14
Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998)…………………………….…….2
Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.-Dallas 2007, no pet.)…………………..……1
Charles Robert Villarreal v. State of Texas, 935 S.W.2d 134, 145 (Tex. Crim. App., 1996)…….1
Dallas Power & Light Company v. Cleghorn, 623 S.W.2d 310, 311 (Tex.1981)…………….…14
Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987)………………………………………..8, 13
Fidelity Mut. Life Ins. Co. v. Robert P. Kaminsky, M.D., P.A., 768 S.W.2d 818, 819 (Tex. App.—Houston [14th Dist.] 1989, no writ)……………………………………………..………17
Gallas v. Car Biz, Inc., 914 S.W.2d 592, 593 (Tex.App-Dallas 1995, writ denied)……….....8, 13
Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 642 (Tex.App.--Corpus Christi 1984, no writ)………………………………………...………………………………………………….8, 13
Gonzales v. Willis, 995 S.W.2d 729, 740 (Tex.App-San Antonio 1999, no pet)……………….22
Haynes & Boone, LLP. V. Chason, 81 S.W.3d 307, 309 (Tex.App-Tyler 2001, pet. denied)…...1
HTM Restaurants, Inc. v. Goldman, Sachs & Co., 797 S.W.2d 326, 328 (Tex. App.-Houston [14th Dist.] 1990, writ denied)…………………………..……………………………………….14
Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)……………………………………………....1
John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied)……………………………………………………………………………………………..8
Lazell v. Stone, 123 S.W.3d 6, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)………………………………………………………………………..……..……14, 17, 18
L-M-S Inc. v. Blackwell, 233 S.W.2d 286, 289 (Tex.1950)……………………………………..14
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990)……….……………………...8, 13
v Navarette v. Temple Indep. School Dist., 706 S.W.2d 308, 309 (Tex.1986)…………………8, 13
Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex. App. – Houston [1st Dist.] 1986, no writ………………………………………………………………………………13
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)…………..……..16, 17, 19
Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986)……………………….…..……..22, 24
Reyna v. First National Bank, 55 S.W.3d 58, 69 (Tex.App-Corpus Christi 2001, no pet.)…......22
Tabrizi v. Daz-Rez Corp., 153 S.W.3d 63, 66 (Tex.App-2004, no pet.)…………………….....2, 8
Tiller v. McLure, 121 S.W.3d 709,713 (Tex.2003)……………………………………………….2
Vance v. My Apt. Steak House, 677 S.W.2d 480, 483 (Tex.1984)………………………………22
Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003)……………………………………………...1
Wal-Mart Stores v. Miller, 102 S.W.3d 706, 709 (Tex.2003)………………………….…………2
Weidner v. Sanchez, 14. S.W.3d 353, 366 (Tex.App-Houston[14th Dist.] 2000, no pet)…......1, 22
Westchester Fire Insurnace Co. v. Admiral insurance Co., 152 S.W.3d 172, 191 (Tex.App-Fort Worth 2004, pet. filed 2-3-05)………………………………………………………...…………22
White v. Liberty Eylau ISD, 920 S.W.2d 809, 813 (Tex.App-Texarkana 1996, writ denied)....1, 22
White v. Southwestern Bell Telephone Co., Inc., 651 S.W.2d 260, 261 (Tex., 1983)…………...22
CODES AND STATUTES
Texas Civil Practice & Remedies Codes § 38.001……………………………..……………..…20
Texas Property Code §93.0002(f)…………………………………………..……….….….…….19
Texas Rule of Civil Procedure 301…………..………………………………………….….…....20
vi STATEMENT OF THE CASE
This case involves landlord-tenant contract disputes based on two separate leases on two
adjacent demised premises. Appellant, 1221 Eldridge Road Inc., filed suit against Appellees,
Life Changing Ministries, Inc., Eric Stephens and Jennifer Stephens, for breach of two separate
lease agreements. Appellee counter sued for breach of contract, breach of the covenant of quiet
enjoyment and for constructive eviction. The case was tried to a jury that rendered a verdict in
favor of Appellees. During trial, after the parties rested, Appellant moved for directed verdict on
Appellees’ counter claims of breach of the warranty of quiet enjoyment and of constructive
eviction. The trial court denied Appellant’s Motion for Directed Verdict. The jury found that
both parties breached the lease agreements, but that Appellant breached first and that Appellant
also breached the warranty of quiet enjoyment and constructively evicted Appellees; and thus,
awarded Appellee $15,000 in attorney’s fees. Appellant moved the trial court to disregard some
of the Jury’s answers. The trial court denied Appellant’s motion and entered judgment of
$15,000 in favor of Appellees for attorney’s fees. Appellant timely filed its Notice of Appeal.
vii ISSUES PRESENTED
1. The trial court erred in denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that all jury questions regarding Appellant’s breach of contract, breach of the covenant of quiet enjoyment and constructive eviction should have been omitted from the questions presented to the jury.
2. The trial court abused its discretion by failing to disregard the jury’s answers because Appellees produced no more than a scintilla of evidence proving that Appellant breached the 1255 Eldridge and the 1243 Eldridge lease agreements.
3. The trial court abused its discretion by failing to disregard the jury’s answers regarding Appellant’s breach of the implied covenant of quiet enjoyment and Appellant’s constructive eviction because the evidence was conclusive as a matter of law that, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellee.
4. The trial court erred and abused its discretion by failing to grant Appellant’s Motion To Disregard Jury’s Questions because the evidence was conclusive as a matter of law that Appellees breached the two lease agreements; and thus, Appellant is entitled to damages and attorney’s fees. Therefore, the evidence does not support the jury’s answers to questions 7, 8, and 11.
5. The trial court erred by denying Appellant’s Motion for Directed Verdict when the facts and evidence were conclusive as a matter of law that Appellant did not breach the contracts; and, therefore, as a matter of law, jury’s question regarding Appellant’s breach of contract, and breach of covenant of quiet enjoyment and constructive eviction should have been omitted.
viii STATEMENT OF FACTS
A. Background Facts
This case centers on two lease agreements with Appellant, 1221 Eldridge Road Inc. as
landlord and Appellees, Life Changing Ministries And Fellowship, Inc., Eric Stephens and
Jennifer Stephens as tenants. On February 29, 2008, Appellees entered into a written lease
agreement with Appellant for the demises premises located at 1255 Eldridge Road in Sugar
Land, Texas (the “1255 Lease”). Per the 1255 Lease, Appellees were to pay Appellant monthly
rent in the amount of $1,216.00 beginning on March 1, 2008 for a period of 36 months. The 1255
Lease also provided that Appellees were to pay $252.00 per month for the prorated share of
taxes, insurance and common area maintenance as well as $100.00 per month for utilities (water)
and $45.00 per month for sign fees and late fees on past due payments as applicable.
On May 14, 2009, Appellees entered into another written lease agreement with Appellant
for the property known as 1243 Eldridge Road in Sugar Land, Texas (the “1243 Lease”). The
1243 Lease provided that Appellees were to pay Appellant monthly rent in the amount of
$760.00 beginning on May 16, 2009 for a period of 36 months. The 1243 Lease also stated that
Appellees were to pay $193.50 per month for the prorated share of taxes, insurance and common
area maintenance as well as $ 40.00 per month for utilities (water) and late fees on past due
payments as applicable.
Evidence presented in the trial court supports Appellant’s claims that Appellees breached
the 1255 Lease by failing to pay rent timely and in full as well as the applicable late fees.
Appellees failed to provide proper insurance coverage, failed to perform a walk-through in
accordance with the turn-over procedure specified in the 1255 Lease and left the leased premises
with damages. Trial evidence also showed that Appellant incurred expenses related to filling in
ix the doorways that Appellees cut in the demising wall between the two leased spaces, replacing
all of the lighted exit signs, emergency eights, large full length wall mirrors, which were
removed by Appellees, and repairing sheet rock damage due to Appellees’ use of the property.
Trial evidence further showed that Appellees breached both the 1243 and the 1255
Leases as soon as they took possession of that space by failing to obtain Appellant’s written
approval prior to make modifications therein. There was also evidence at trial of Appellees’
breach of the 1243 Lease by failing to pay rent in the form of the late fees. It is undisputed that
Appellees breached the 1243 Lease by vacating that space 14 months early and refusing to pay
rent as well as the other fees for the remainder of the lease term. Specifically, Appellees failed to
pay rent in full beginning in March, 2011 and continuing until the end of the lease term, May 15,
2012. undisputed evidence at trial included the fact that Appellees failed to provide proper
insurance coverage, failed to perform a walk-thru in accordance with the turn-over procedure
specified in Appellees’ 1243 Lease (Appellee mailed the key to the lease premises) and
Appellees left the lease premises in an un-leasable condition due to the damages caused by
Appellees. Appellant provided further evidence at trial that it incurred expenses related to filling
in the doorways where Appellee had cut in the demising wall between the two leased spaces.
Additional evidence at trial showed Appellant had to replace all of the lighted exit signs,
emergency lights, which were removed by Appellees and repair sheet rock damage in the 1243
leased space due to Appellees’ use of the property.1
Appellant filed suit, Appellees answered and countersued. The case was tried to a jury
and the jury found both parties breached the leases, the Appellant was the first to breach, the
1 Vol. 3 R.R., pg. 32 lines 17-21; Vol. 3 R.R., pg. 51 lines 9-22; See Appellant’s Trial Exhibit 2.
x Appellant breached the warranty of quiet enjoyment and constructively evicted the Appellees.2
B. Appellant’s Motion for Instructed Verdict
At trial, after both parties rested and outside the presence of the jury, Appellant moved
for instructed verdict pursuant to the T.R.C.P § 268, on Appellees’ breach of contract, breach of
warranty of quiet enjoyment and constructive eviction claims. After hearing Appellant’s oral
motion, the trial court asked Appellees a number of questions and suggested that there was no
evidence to support Appellees’ breach of contract claim. However, the allowed jury questions
regarding Appellees’ claims. Appellant contends that since there was insufficient evidence
presented at trial to support the presentment of those questions to the jury, the trial court erred.
C. Appellant’s Motion to Disregard Jury’s Answers
Appellee filed their Motion for Final Judgment. Appellant then filed its Motion to
Disregard Jury’s Answers. As part of Appellant’s Motion to Disregard Jury’s Answers, it argued,
among other things, that:
1. Appellees produced no more than a scintilla of evidence proving that Appellant
breached the 1255 Eldridge Lease and the 1243 Eldridge Lease;
2. The evidence was conclusive that Appellees did not have the right to an implied
covenant of quiet enjoyment and Appellant did not constructively evict Appellees
from the leased premises; and
3. The evidence was conclusive that even if both parties breached, Appellees breached
first and Appellant is entitled to damages and attorney’s fees as the result of
Appellees’ breach.
The trial court denied Appellant’s Motion to Disregard Jury’s Answers and granted final
2 R.R. Vol. 5, pg. 32, line 11 through pg. 33, line 21.
xi judgment in favor of Appellee and entered a Final Judgment in favor of Appellees. Appellant
timely filed its Notice of Appeal.
xii SUMMARY OF ARGUMENTS
Appellant would respectfully show that:
A. The trial court erred and abused its discretion by denying Appellant’s Motion to
Disregard Jury’s Questions because there is no evidence in support of the jury’s answers
to questions 2 and 5.
B. The trial court erred and abused its discretion by denying Appellant’s Motion To
Disregard Jury’s Questions because the evidence was conclusive that, as a matter of law,
even if the jury found both parties breached the leases, Appellees breached first; and,
therefore, the evidence does not support the jury’s answers to questions 3 and 6.
C. The trial court erred and abused its discretion by denying Appellant’s Motion To
Disregard Jury’s Questions because the evidence was conclusive that, as a matter of law,
Appellees had no warranty of quiet enjoyment of the leased spaces and Appellant did not
constructively evict Appellees from the lease premises. And as such, the evidence does
not support the jury’s answer to question 9.
D. The trial court erred and abused its discretion by denying Appellant’s Motion To
Disregard Jury’s Questions because the evidence was conclusive that, as a matter of law,
as a result of Appellees’ breach of the two lease agreements, Appellant is entitled to
damages and attorney’s fees; and, therefore, the evidence does not support the jury’s
answers to questions 7, 8, and 11.
E. The trial court erred by denying Appellant’s Motion for Directed Verdict since there was
insufficient evidence to support the jury questions regarding Appellant’s breach of
contract, breach of covenant of quiet enjoyment and constructive eviction claims.
xiii ARGUMENTS
A. Standard of Review
An appeal from the denial of motion for directed verdict is a challenge of legal
sufficiency.1 The denial of a motion for directed verdict lays the foundation for challenging the
evidence on appeal by issues or points of error contending there was no evidence of certain fact
or that a fact was established as a matter of law.2 Questions of law are reviewed de novo by the
appellate tribunal.3 Because this appeal is based on the trial court’s denial of Appellant’s Motion
for Instructed Verdict, contending that there was no evidence in support Appellees’ causes of
action for breach of contract, breach of warranty of quiet enjoyment and constructive eviction,
the standard of review is de novo.
Issues related to the trial court’s denial of Appellant’s Motion to Disregard Jury Answers
should be reviewed under both, de novo and the abuse of discretion standards. The test for abuse
of discretion requires the appellate court to determine whether the trial court acted in an arbitrary
or unreasonable manner without reference to any guiding rules or principles.4 A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any
guiding rules or principles.5 An abuse of discretion occurs if the trial court clearly failed to
analyze and determine the law correctly or applied the law incorrectly to the facts.6 Because
Appellant is challenging the trial court’s misapplication of law and fact in denying its Motion to
Disregard Jury’s Answer, issues related to same should be reviewed under the abuse of
discretion standard.
1 Haynes & Boone, LLP. v. Chason, 81 S.W.3d 307, 309 (Tex.App-Tyler 2001, pet. denied). 2 Weidner v. Sanchez, 14 S.W.3d 353, 366 (Tex.App-Houston[14th Dist.] 2000, no pet); and White v. Liberty Eylau ISD, 920 S.W.2d 809, 813 (Tex.App-Texarkana 1996, writ denied). 3 Charles Robert Villarreal v. State of Texas, 935 S.W.2d 134, 145 (Tex. Crim. App., 1996). 4 Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). 5 Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). 6 Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.-Dallas 2007, no pet.).
1 A. The trial court erred and abused its discretion by failing to disregard the jury’s answers number 2 and 5 because Appellees did not produced more than a scintilla of evidence that Appellant breached the 1255 Eldridge Lease and the 1243 Eldridge Lease.
A trial judge may grant a motion for judgment notwithstanding the verdict when there is
no evidence to support one or more of the jury’s findings of fact necessary to the judgment. The
Court should grant a motion for JNOV if there is no evidence to support the jury findings.7
When the evidence is no more than a scintilla, it is no evidence.8 In determining whether to
grant a motion for JNOV, the Court may look at these factors: (1) the complete absence of
evidence of a necessary fact; (2) the evidence offered to prove the necessary fact is no more than
a mere scintilla of evidence; (3) the evidence conclusively establishes the opposite of the
necessary fact; or (4) the rules of law or evidence bar consideration of the only evidence offered
to prove the necessary fact.9
In this case, Appellees failed to offer the necessary evidence to show that Appellant’s
actions and/or omissions constituted a breach of the Leases, which would have supported the
jury’s answers to questions 2 and 5.
i. There is no evidence that Appellant breached the Leases by charging estimated water use fees
Appellees alleged in their pleading and at trial that Appellant breached the leases by
making estimated demands for water usage.10 Appellees further claimed that Appellant initiated
the conflict by making unfair demands of alleged unauthorized fees.
However, the evidence and witness testimony at trial were contrary to Appellees’ 7 Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). See Tiller v. McLure, 121 S.W.3d 709,713 (Tex.2003); Wal-Mart Stores v. Miller, 102 S.W.3d 706, 709 (Tex.2003); Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998). 8 Tabrizi v. Daz-Rez Corp., 153 S.W.3d 63, 66 (Tex.App-2004, no pet.); Rush v Barrios, 56 S.W.3d 88, 94-95 (Tex.App-Houston [14th Dist.] 2001, pet. denied). 9 Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991). 10 R.R. Vol. 4 pg. 33 lines 1-15 and pg. 74, line 5 to pg. 75 line 25.
2 claims.11 Article VIII of the Lease Agreements authorized Appellant to charge Appellees an
initial estimate of the water bill, and at a later time, adjust the estimate to more accurately reflect
Appellees’ usage.12 Further, under section 20 of Exhibit A of the Lease Agreement, Appellees
agreed that they will be charged water and sewage based on the city rates from Appellees’ sub-
meters, “and/or [Appellant’s] estimated monthly water usage by [Appellees] at [Appellant’s] sole
discretion.”13 Appellant testified that on at least one occasion when it suspected there was a
water leakage, it was not able to access the leased premises to inspect and was not able to contact
Appellees.14 Furthermore, Appellant’s representative, Mr. Scott Pierce, testified that on
numerous occasions he was not able to enter the leased premises to check the water sub-meters
and was unwelcome at other times when he was able access to the properties.15 Therefore, under
the terms of the leases and at its option, Appellant charged a reasonable amount for Appellees’
estimated water usage and would later credit Appellees in the event they over-paid.16 Appellees’
offered evidence that Appellant breached the Leases by making unauthorized demands for
estimated water usage demands is unsubstantiated. In fact, just the opposite was provided for in
the Leases - that Appellant is authorized to estimate Appellees’ monthly water usage, at its own
discretion.17
ii. Appellees claim that Appellant breached the Leases by charging for signage fees
Appellees claimed that Appellant was not authorized to charge for signage fees.18 Article
VII of the Lease Agreements states that, “Tenants will install at Tenant’s own expenses a sign
11 R.R. Vol. 3. pg. 44 line 4 to pg 47 line 9. 12 R.R. Vol. 6 Appellant’s Trial Exhibits “3” and “4” the Leases 13 Id. R.R. Vol. 4 pg. 79, lines 3-9 and pg. 87, line 4 to pg. 89 line 25. 14 R.R. Vol. 3 pg. 64, line 1 to pg. 65 line 8. 15 R.R. Vol. 3 pg. 102, line 22 to pg. 103, line 4, pg. 130, lines 6-24. 16 R.R. Vol. 3, pg. 167, lines 6-22. 17 R.R. Vol. 6 Appellant’s Trial Exhibits “3” and “4” the Leases. 18 R.R. Vol. 4, pg. 180 line 23 to pg. 182, line 3.
3 which meets the Landlord’s existing established criteria and which Landlord may charge, at his
sole discretion, as he deems appropriate to advertise the Center.” Emphasis added.19
Furthermore, under section 21 of the Exhibit A of the Lease Agreements, Appellees agreed to
pay Appellant a signage fee of $40, which later changed to $45 when Appellees acquired the
additional space located at 1243 Eldridge.20 Therefore, the Leases clearly give Appellant the
discretionary right to make demands for signage fees. By virtue of Appellees’ assent to the terms
of the Leases, they agreed to pay for any such signage fees. By not paying the signage fees as
agreed, Appellees breached the Leases before Appellant could have breached.
At trial, Appellees argued that under section 3 of Exhibit A of the Leases and because the
parties never entered into a written agreement separate from the Leases, signage fees were not
payable to Appellant by virtue of the following language: “If Tenant wishes to use any pylon
sign or sign frame supplied by Landlord, Tenant will sign an agreement separate from this
lease.”21 However, the requirement of a signage agreement apart from the Leases is not a
condition precedent necessary for Landlord to charge Appellees a signage fee. In other words,
Appellant, as the Landlord, has the right to make Appellees to sign another agreement prior to
the use of the pylon structure, but Appellant is not obligated to sign a new contract to enforce the
signage fees, especially when Appellees already installed the signs and use the pylon structure.
Evidence of Appellees’ further breach of the Leases included trial testimony by both
parties that Appellees installed sign without Appellant’s written preapproval and knowledge.22
Both parties testified that the Leases specifically stated that if a pylon sign was going to be
19 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases. 20 Id. 21 Id. 22 R.R. Vol. 3, pg. 124, lines 4-19, pg. 189, lines 1-11, (CANT FIND WHERE STEPHENS TESTIFIED TO THIS)
4 installed, a sketch must be provided to Appellant prior to it installation.23 By using the pylon
sign, failing to produce a sketch of the sign to Appellant prior to its installation, and by refusing
to pay for signage fees authorized under the Leases, Appellees breached the Leases first.
iii. Appellees first breached the Leases by paying late
Evidence at trial showed that Appellees breached the leases prior to Appellant making
payment demands. Appellees continuously paid rent late and failed to pay for at least two rent
increases.24 The Leases authorized Appellant to charge a late fee of 10% for late payments and
18% for unpaid rent. Section 2.2 under Article II of the lease stipulates that all rents are due and
payable on or before the first day of each and every calendar month; provided that if the lease
commences on a date different from the first of each month, rent will be due and payable on that
date.25 Appellees argued, however, that rent is considered due and payable when it is mailed
out.26 Appellees’ argument is contrary to the contract, and even more importantly, contrary to
the evidence. The phrase “due and payable,” is defined under Section 10 of Exhibit A of the
Leases. Said section states that all rent “must be received by Landlord on or before the first of
each calendar month.”27 This section is applicable to the first of every month with respect to the
1255 Eldridge Lease and on the 15th of every month with respect to the 1243 Eldridge Lease.28
To enforce prompt payment of rent under Article 22.8 of the Leases, Appellant is
authorized to charge Appellees a flat rate of 10% of all late payments. This is not to be
construed as an interest rate; but rather, it is a penalty for late payments.29 As an additional tool
to enforce the contract, Section 9 of Exhibit A of the Lease Agreement authorized Appellant to
23 R.R. Vol. 3, pg. 124 lines 4-19. 24 R.R. Vol. 3, pg. 164, line 23 to pg. 165, line 3. 25 Id.; R.R. Vol. 3 pg. 38, lines 5-23. 26 R.R. Vol. 4 pg. 118 to pg. 123 line 21. 27 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4”, the Leases. 28 R.R. Vol. 6 pg. 28 lines 59-62; and R.R. Vol. 6 pg. 47 lines 59-62 29 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4”, the Leases.
5 charge Appellees 18% interest for all unpaid rent from the date due until paid.30 Therefore, the
Leases specifically authorized Appellant to make charges specific to late fees and interest and
acceptance of any such late payment and late fees, “shall not constitute a waiver of tenant’s
default with respect to the overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies available to Landlord.”31
As incentive for Appellees to enter into the Leases, Appellant reduced rate on both of the
Lease.32 However, Appellees were to reimburse Appellant the reduced rent amount if they were
to default on the Leases.33 Section 16 of Exhibit A under the Lease Agreements stipulates the
amount of reduced rents and the conditions of such fees.34 With respect to the 1255 Eldridge
Lease, Appellant gave Appellees a discount in the amount of $187.00 per month for twelve
months.35 As to the 1243 Eldridge Lease, Appellant had given Appellees a discount in the
amount of $474.00 per month for 36 months.36 As stated above, the Leases required Appellees
to repay the discounted fees should they default on the lease. Specifically, pertinent excerpts of
Section 16 of Exhibit A under the Lease Agreements states that, “…Should Tenant violate or in
default under this lease at any time, Tenant shall immediately repay such discount in its entirety
to Landlord upon demand by Landlord.”37 As such, the Leases specifically allow Appellant to
make demand for repayment of the reduced fees when and if Appellees. Lastly, the Lease
Agreements authorized Appellant, in its discretion, to make demands for any and all of the
30 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4”, the Leases. 31 See Appellant’s Trial Exhibits “3” and “4,” Article XXII, Section 22.8. 32 R.R. Vol. 3, pg. 54 lines 21-22. 33 Id. 34 R.R. Vol. 6, Appellant’s Trial Exhibit “3.” 35 R.R. Vol. 6, Appellant’s Trial Exhibit “3.” 36 R.R. Vol. 6, Appellant’s Trial Exhibit “4.” 37 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4”, the Leases.
6 unpaid rent and fees at any time, which Appellees confirmed they understood.38
Consequently, the evidence does not support the jury’s answers in finding that Appellant
breached the Leases by exercising Appellant’s rights and default remedies under the Leases. The
Leases specifically authorized Appellant, at his discretion, to provide estimate water bills to
Appellees. Appellant exercised its right to estimate water bills and to give credit to any overage
that Appellees paid. The Lease Agreements also authorized Appellant to charge for a signage
fee when Appellees use the pylon structure provided by Appellant. The fact that Appellant
waived his right to require a separate sign agreement does not waive his right to collect payment.
The Leases also authorized Appellant, at his discretion, to make demands for late fees and
interests on unpaid rents. Lastly, Appellees agreed to and Appellant exercised his right to make
demands for the reduced rent amounts that were provided to Appellees at the commencement of
the Leases.39 Therefore, the evidence shows that Appellant did not breach the Leases by
exercising his contractual rights by making demands for unpaid rents, water bills, signage fees
and late fees and/or interests, even though no interest was demanded. Also, Appellant did not
breach the Leases by making demands, after Appellees’ default, for the reduced rent and
common area maintenance (CAM).
iv. Appellant did not breach the Leases by demanding payment for signage
The trial court evidence does not support the jury’s answers under questions 2 and 5. Any
evidence regarding the lack of a separate signage agreement is irrelevant especially when the
Leases specifically state that Appellees must present Appellant with a sketch of the sign prior to
38 R.R. Vol. 4, pg. 176, lines 10-24. 39 R.R. Vol. 6, Appellant’s Trial Exhibits “8,” “10,” “13,” 16, and “21”, letters from Appellant to Appellees requesting payment of unpaid rent, water bills, signage fees and final demands. Please note that the differences in the amount of demands reflect different various items for which Landlord was authorized to request payment.
7 installing the sign, which Appellees failed to do. Even if the jury concluded that Appellant and
Appellees should have entered into a separate sign agreement, it is trivial and no more than a
scintilla of evidence against overwhelming fact of the case and that it is no evidence at all.40
B. The trial court erred and abused its discretion by failing to disregard the jury’s answers to questions numbers 3 and 6 because the evidence was conclusive that, as a matter of law, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellees from the leased premises.
A Court should grant a JNOV if an issue contrary to the jury’s finding was established as
a matter of law.41 For a trial Court to disregard a Jury’s findings and grant a motion for JNOV on
the evidence, it must determine whether the evidence established an issue as a matter of law, and
the Jury was not free to make contrary findings.42 The Texas Pattern Jury Charges require that
when both parties breached, the question would be who breached first. Jury questions 3 and 6 in
this case pertain to whether Appellees or Appellant breached first. Having answered that both
parties breached on both contracts, the Jury found that Appellant breached first.
The evidence does not support the jury’s answers to questions 3 and 6; but to the
contrary, the evidence was conclusive, irrespective of the signage fee issue, that Appellees
breached the Leases first by: (1) failure to pay rent on time; (2) failure to pay water bills and
signage fees on time; (3) failure to pay rent, late fees and CAM upon demand by Appellant; (4)
failure to repay reduced rent amounts upon default; (5) failure to obtain Appellant’s written
consent prior to making alterations to both leased premises; (6) failure to obtain proper insurance
coverage for both leased premises; (7) failure to return both leased premises to their original
40 Tabrizi v. Daz-Rez Corp., 153 S.W.3d 63, 66 (Tex.App-2004, no pet.); Rush v Barrios, 56 S.W.3d 88, 94-95 (Tex.App-Houston [14th Dist.] 2001, pet. denied) 41 Gallas v. Car Biz, Inc., 914 S.W.2d 592, 593 (Tex.App-Dallas 1995, writ denied); See John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied); and Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). 42 John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied); Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Navarette v. Temple Indep. School Dist., 706 S.W.2d 308, 309 (Tex.1986); and Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 642 (Tex.App.--Corpus Christi 1984, no writ).
8 condition, after written notice requests by landlord; (8) failure to provide Appellant with a sketch
of the sign prior to the installation; (9) failure to provide thirty (30) days notice prior to vacating
both lease premises; and (10) removal of fixtures from both leased premises.
Assuming arguendo that the jury was correct in returning the verdicts that both parties
breached the Leases, the evidence shows that Appellees breached first. First, Appellees breached
the Leases by consistently making payments late.43 Appellees’ testimony that by sending
payments by mail on or before the first or the fifteenth of each month is insufficient to show the
payments were made timely per the Leases language.44 Soon after occupying the leased premises
at 1255 Eldridge, Appellees began making late payments. Post marks on numerous envelopes
Appellees used to mail rent and water payments show that payments were consistently late and
were not mailed out until after the first or the fifteenth of each month necessarily could not be
received by Appellant timely.45 Regardless of whether Appellant makes demand for the 10%
late fee as authorized under Section 22.8, Article XXII of the Leases, late payments on a
consistent basis is a default under the Leases. Even if Appellant accepted late payments, it did
not waive any rights to collect late fees or any other remedy under the Leases.46 Even if the jury
erroneously found that Appellant breached the Leases by making demands for late payments,
other unpaid rents, Appellees’ failure to pay timely, pay water bills, signage fees and CAM,
constitute first breach the Leases by virtue of their failure to paid said rents, bills and fees from
the onset of their tenancy. Therefore, any finding by the jury that Appellant was the first to
breach is contrary to the evidence presented at trial.
43 R.R. Vol. 3, pg. 39 line 13 to pg. 40 line 19. 44 R.R. Vol. 4 pg. 118 to pg. 123 line 21. 45 Id.; R.R. Vol. 6, Appellant’s Trial Exhibits Appellant’s Trial Exhibit “22.” Copies of envelopes and checks showing that even though the checks were back-dated, the checks were consistently mailed out after the due date, which was the first and the 15th of each month. 46 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases, Section A of Article XVI.
9 i. Appellees’ non-monetary Lease breaches
In addition to monetary defaults, from the onset of the Leases, Appellees defaulted on
non-monetary lease provisions. As indicated in Appellees’ Trial Exhibit “1”, within weeks of
occupying the lease premises, Appellees began making alterations to the leased premises at 1255
Eldridge Road.47 Section 6.1 of Article VI of the Lease Agreements required Appellees to obtain
written approval from Appellant prior to making alterations.48 There is no evidence that
Appellees provided Appellant with a written request prior to making alterations and
improvements on the lease premises.49 There was contradicting testimony regarding when
Appellant first witnessed the alterations. However, Appellees conceded that there was no written
request and Appellant testified that he did not have knowledge of the alterations until the
construction had begun.50 The evidence supports the finding that Appellees failed to provide
written request and failed obtain Appellant’s approval prior to initiating the remodeling or
alterations on both leased premises.51 Lastly, the first week that Appellees moved into 1255
Eldridge Road, they installed a pylon sign without Appellant’s consent. Additionally, they failed
to provide Appellant with a sketch of the sign prior to its installation pursuant to the Leases’
language.52 By failure to provide written request and obtain Appellant’s approval before making
changes and alterations to the properties and the sign, Appellees breached the Leases first, well
within the first week of leasing 1255 Eldridge Road premises.
47 R.R. Vol. 6, Appellees’ Trial Exhibit “1.” Pictures taken of the lease premises, showing that both leased premises had alterations and the premises were not put back in their original condition, such as the sheetrock, separating the two premises and the removal of the stage, as well as the replacement of the glass mirrors; Testimony at R.R. Vol. 3 pg. 58 lines 5-22. 48 R.R. Vol. 6, Appellant Trial Exhibits “3” and “4.” Section 6.1, Article VI of the Lease Agreement clearly states that, “Tenant shall not make any alterations, additions, or improvements to the demised premises without prior written consent of Landlord…”, Testimony at R.R. Vol. 3 pg. 58 lines 5-22. 49 R.R. Vol. 3 pg. 58 line 5 to pg. 59 line 7. 50 Id.; R.R. Vol. 4 pg. 164 line 3 to pg. 165 line 24. 51 Id. 52 R.R. Vol. pg. 124 lines 11-22.
10 Appellees also non-monetarily breached the Lease Agreement by failing to insure the
leased premises per their obligation under the Leases by obtaining an insurance policy that was
one-half of the required minimal amount designated under the lease.53 Section 17 of Exhibit “A”
under the Leases requires that the minimal liability coverage under the lease is increased from
$500,000 to $1,000,000 per incident and the minimal personal injury coverage is also increased
to $1,000,000.00.54 Nevertheless, Appellees failed to obtain coverage for the leased premises at
1243 Eldridge at all times and only obtained one-half of the coverage for the leased premises at
1255 Eldridge.55 By failure to maintain the proper minimum coverage for the 1243 Eldridge
lease and failure to maintain proper minimum coverage for the 1255 Eldridge lease, Appellees
breached the Leases from the onset of the parties’ relationship. Therefore, the trial evidence
conclusively showed that Appellees breached the Leases first.
ii. Appellant did not waive any rights under the Leases to delay demand payment from Appellees
Appellees testified at trial that Appellant’s subsequent delayed demands for payment
made upon Appellees constituted first breach and constructive eviction.56 However, the evidence
is contrary to this argument.
Under Section A of Article XVI of the Leases, the non-pursuit of any specific default
remedy does not preclude Landlord from exercising its rights to any other default remedies, even
if delayed.57 It is undisputed that Appellant accepted late and underpaid rent and water payments
and fees from Appellees. Appellees testified that by virtue of Appellant’s acceptance of less than 53 R.R. Vol. 3 pg. 57 line 1 to pg. 58 line 4. 54 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4.” Section 17, Exhibit “A” of the lease states that the insurance policy under Article IX of the Lease Agreements was increased from $500,000 to $1,000,000 for both liability coverage and for personal injury. 55 R.R. Vol. 6, Appellant’s Trial Exhibit “22,” Copy of Defendant’s insurance policy for $500,000 per incident and in aggregate. 56 R.R. Vol. 4, pg. 139, line 4 to pg. 140, line 11. 57 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases.
11 full payments and or late payments, it and making later demands for these payments in full, they
were constructively evicted; and, this fact supports their claim that Appellant first breached the
Leases.58 And, that by virtue of the Appellant’s subsequent demands, Appellees were
constructively evicted.59
Any evidence of Appellees’ failure to obtain written permission prior to making
alterations to the leased premises and prior to installing the sign is insufficient to show that
Appellees should be excused from performance under these lease provisions and the jury could
not consider this as evidence of Appellees’ right of non-performance. By the plain language of
the Leases, by allowing Appellees to continue with the alteration of the lease premises, Appellant
did not waive its right to require Appellees to return the leased premises to their original
condition. And, therefore, any demand by Appellant to do so does not constitute breach or
support Appellees’ claim of constructive eviction; and, the jury could not have considered such
evidence.
iii. The jury cannot consider Appellees’ lack of sophistication as justification for noncompliance of the lease terms
Appellees’ claim that they should be excused for noncompliance because they were
novice commercial tenants and did not fully understand the terms of the Leases does not comport
with well-established Texas law and is no evidence that the jury could consider in finding that
the Appellant first breached the Leases.
Texas law is clear that courts do not undo done deals simply because the parties failed to
negotiate favorable terms of an agreement. “Every person having the capacity to enter into a
58 See Appellant’s Trial Exhibit “22,” Copies of envelopes and checks showing that even though the checks were back-dated, the rent checks were consistently mailed out after the due date, which was the first and fifteenth of each month and Appellant’s Trial Exhibit “23,” Copies of water bills that were being underpaid by Appellees. 59 R.R. Vol. 4, pg. 139, line 4 to pg. 140, line 11.
12 contract, in the absence of fraud, misrepresentation, or concealment, must be held to have known
that the words used in the contract and to have known their meaning, and he must be held to have
known and fully comprehended the legal effect of the contract.”60 Appellees’ testimony that
they were unsophisticated commercial tenants does not constitute evidence that they should be
excused from performance under the Leases’ terms; and, therefore, any demands for payment by
Appellant does not constitute breach or could possibly be the basis for a constructive eviction
claim.
Appellees provided no evidence that could in any way support the jury findings that
Appellant first breached the Leases, which was necessary to support the jury’s answers to
questions numbers 3 and 6.61
C. The trial court erred and abused its discretion by failing to disregard the jury’s answer to question number 9 because the evidence was conclusive that, as a matter of law, Appellees did not have the right to an implied covenant of quiet enjoyment and Appellant did not constructively evict Appellees from the lease premises.
A court should grant a JNOV if an issue contrary to the jury’s finding was established as
a matter of law.62 For a trial court to disregard a jury’s findings and grant a motion for JNOV on
the evidence, it must determine whether the evidence established an issue as a matter of law, and
the jury was not free to make contrary findings.63 Evidence proffered at trial did not support the
jury’s answer to question number 9 that (1) Appellees have an implied warranty of quiet
enjoyment, and (2) Appellant constructively evict Appellees. Accordingly, the trial court should
have granted Appellant’s motion for JNOV.
60 Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex. App. – Houston [1st Dist.] 1986, no writ). 61 Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991). 62 Gallas v. Car Biz, Inc., 914 S.W.2d 592, 593 (Tex.App-Dallas 1995, writ denied); See John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied); and Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). 63 John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied); Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Navarette v. Temple Indep. School Dist., 706 S.W.2d 308, 309 (Tex.1986); and Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 642 (Tex.App.--Corpus Christi 1984, no writ).
13 i. As a matter of law, Appellees did not have an implied covenant of quiet enjoyment.
The trial court erred and abused its discretion by denying Appellant’s Motion to
Disregard Jury’s Answer to question number 9 because the evidence conclusively shows that as a
matter of law, Appellees did not have the implied covenant of quiet enjoyment. Texas law
recognizes that unless expressly stated otherwise, every commercial lease contains an implied
covenant that the tenant will have quiet use and enjoyment of the premises for the term of the
lease.64 However, the express terms of the lease may waive the implied covenant of quiet
enjoyment of the leased premises.65 In addition, landlords can assert a defense that the express
terms of the lease permitted the landlord to interfere with the tenant’s use of the property.66 In
other words, tenants can waive an implied covenant of quiet enjoyment if the express terms of
the lease stated the parties’ intent.
Texas law allows landlords to disclaim any implied covenant of quiet enjoyment. Under
Dallas Power & Light Company v. Cleghorn, the Texas Supreme Court held that a landlord can
assert the defense that the express terms of the lease disclaimed the implied covenant of quiet
enjoyment.67 Here, the bargained for lease terms clearly provide that Appellees could waive any
right to implied covenant by failing to perform as agreed.
Section 22.5 under Article XXII of the Lease Agreements clearly expressed the parties’
intent for Appellant to disclaim and for Appellees to waive any implied covenant of quiet
enjoyment, if Appellees did not perform all of the covenants and agreements under the lease,
64 L-M-S Inc. v. Blackwell, 233 S.W.2d 286, 289 (Tex.1950); HTM Restaurants, Inc. v. Goldman, Sachs & Co., 797 S.W.2d 326, 328 (Tex. App.-Houston [14th Dist.] 1990, writ denied); R.R. Vol. 3, pg. 94 line 14 to pg. 95 line 22. 65 Lazell v. Stone, 123 S.W.3d 6, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 66 Briargrove Shopping Center Joint Venture, Inc. v. Vilar, Inc., 647 S.W.2d 329, 334 (Tex.App.-Houston [1st Dist.] 1982, no writ). 67 Dallas Power & Light Company v. Cleghorn, 623 S.W.2d 310, 311 (Tex.1981); and L-M-S Inc. v. Blackwell, 233 S.W.2d 286, 289 (Tex.1950).
14 including monetary and nonmonetary provisions. Specifically, Section 22.5 under Article XXII
of the Leases states that:
“Landlord covenants and agrees that, upon payment by Tenant of the rent and all other sums herein provided for, and upon the observance and performance of all the covenants and agreements on the Tenant’s part to be observed and performed hereunder, Tenant shall, subject to the terms and provisions of this Lease, at all times during the continuance of this Lease have the peaceable and quiet enjoyment and possession of the demised premises.”68
That is, Appellant covenants and agrees to provide the covenant of quiet enjoyment to Appellees,
if and only if, Appellees pay all rent and comply with all the provisions of the Leases.
Additionally, Article XVI of the Leases stated Appellant’s remedies in case Appellees defaulted
on the lease.69 Among the other remedies, Appellees consented to actual interference by
Appellant to take possession of the leased premises and to demand payments, as well as other
performance, from Appellees.70
Evidence at trial showed that Appellees consistently failed to pay rent on time, failed to
pay the full amount of rent, failed to pay water bills and signage fees, failed to pay late fees and
CAM and failed to provide notice/sketches of sign installations and alterations.71 Furthermore,
Appellees breached the Leases from the onset by failing to maintain the minimum amount of
insurance coverage for the 1255 Eldridge space and failed to obtain insurance on the 1243
Eldridge space and failed to obtain written consent by Appellant prior to making alterations to
both leased premises and prior to installing signage on the pylon structure.72 As such, Appellees
failed to perform as agreed under the Leases; and, therefore, expressly waived any right to an
implied covenant of quiet enjoyment. Accordingly, the jury could not have found that the
68 R.R. Vol. 6, pg. 26 lines 65-68 and pg. 44 lines 65-68. 69 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4”, the Leases. 70 R.R. Vol. 6 pg. 25 lines 25-68. 71 R.R. Vol. 6, Appellant’s Trial Exhibits “8,” “10,” “13,” 16, and “21”, letters from Appellant to Appellees requesting payment of unpaid rent, water bills, signage fees and final demands. 72 R.R. Vol. 3 pg. 57 line 1 to pg. 58 line 4.
15 Appellees had any rights to such a covenant and was legally obliged to answer question 9 in the
negative.
The jury found that Appellees breached the Leases as evidenced by its answers to
questions 1 and 4. Therefore, Appellant had the absolute right to actual interference with
Appellees’ use and possession of the leased premises. Given the evidence at trial and the jury’s
answers that the Appellees breached the Leases, it was erroneous for the jury to conclude that
Appellant breached the implied covenant of quiet enjoyment, when in fact Appellant had the
right to actual interference in the event Appellees breached pursuant to the terms of the Leases.
The trial court, as a matter of law, was obliged to grant Appellant’s Motion to Disregard Jury’s
Answer to number 9 because Appellees did not have the right to an implied covenant of quiet
enjoyment based on the expressed terms of the Leases and Appellees’ consent to interference.
ii. Appellant did not constructively evict Appellees.
The trial court erred and abused its discretion by denying Appellant’s Motion to
Disregard Jury’s Answer to question number 9 because the evidence conclusively showed, as a
matter of law, that Appellant did not constructively evict Appellees. Appellees have failed to
prove the required elements under a constructive eviction cause of action.73
The elements of a cause of action for constructive eviction are (1) an intention on the part
of the landlord that the tenant shall no longer enjoy the premises, (2) a material act by the
landlord that substantially interferes with the tenant's intended use and enjoyment of the
premises, (3) an act that permanently deprives the tenant of the use and enjoyment of the
premises, and (4) abandonment of the premises by the tenant within a reasonable time after the
73 Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995).
16 commission of the act.74 The evidence at trial conclusively shows that Appellees have not
proved the first three (3) elements of constructive eviction.75
A constructive eviction occurs when the tenant leaves the leased premises due to conduct
by the landlord which materially interferes with the tenant’s beneficial use of the premises.76
Constructive eviction essentially terminates mutuality of obligation under the lease terms
because the fundamental reason for the lease’s existence has been destroyed by the landlord’s
conduct.77
iii. No evidence Appellant intended that the tenant shall no longer enjoy the premises.
There was no testimony or evidence entered at trial that Appellant intended for Appellees
not to enjoy the leased premises. Intent may be inferred from the circumstances, such as
changing the locks and informing a commercial tenant that she is not welcome on the property.78
However, in Quitta v. Fossati, the appellate court held that even the landlord’s threat to get the
sheriff” to evict the tenants was not evidence of constructive eviction.79 The court explained that
to support a finding of constructive eviction, there must be evidence of “some additional feature,
such as harassing incidents disturbing to the tenant’s peaceful possession and occurring on the
property.”80
In the case at bar, Appellant was simply exercising his rights under the lease to make
written demands on the unpaid rent, late fees, water bills and signage fees. No evidence was
74 Lazell v. Stone, 123 S.W.3d 6, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 75 Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). 76 Fidelity Mut. Life Ins. Co. v. Robert P. Kaminsky, M.D., P.A., 768 S.W.2d 818, 819 (Tex. App.—Houston [14th Dist.] 1989, no writ). 77 Downtown Realty, Inc. v. 509 Tremont Bldg., Inc., 748 S.W.2d 309, 313 (Tex. App.—Houston [14th Dist.] 1988, no writ). 78 Downtown Realty, Inc. v. 509 Tremont Bldg., Inc., 748 S.W.2d 309 at 312. 79 Quitta v. Fossati, 808 S.W.2d 636 (Tex. App.—Corpus Christi 1991, writ denied) 80 Quitta v. Fossati, 808 S.W.2d 636, 643 (Tex. App.—Corpus Christi 1991, writ denied)
17 produced at trial to show that Appellant made any threat to evict Appellees from the leased
premises. In fact, Appellees testified that the Appellant never threatened eviction.81 Appellant
simply demanded payment of unpaid rents and fees that he believed Appellees owed. Appellant
only sent out “final notice” with turnover instructions since the 1255 Lease was ending.82
Appellees utterly failed to offer any evidence Appellant’s actions constituted constructive
eviction.
iv. No evidence that the Appellant performed a material act that substantially interferes with the Appellees’ intended use and enjoyment of the premises.
Appellees needed to provide evidence that the Appellant performed some material act by
that substantially interfered with the Appellees’ intended use and enjoyment of the premises.83
There was no evidence at trial that Appellant entered the lease premises for any reason but to
read the water sub-meters or interfere with Appellees’ use and enjoyment of the property by
locking them out. Demand letters, without such harassing incidents disturbing to the tenant’s
peaceful possession and occurring on the property, does not constitute a material act, rising to
constructive eviction.84
v. No evidence that Appellant’s acts or omissions permanently deprived Appellees of use and enjoyment of the leased premises.
In addition to the foregoing elements, to prove they were constructively evicted, the
Appellees must have provided evidence that the Appellant performed or failed to perform some
the act that permanently deprived the Appellees of the use and enjoyment of the premises.85
81 R.R. Vol. 4, pg. 178, lines 11-18. 82 R.R. Vol. 6, Appellant’s Trial Exhibits “8” through “13,” “15” and “16.” (copies of written correspondence between Appellant and Appellees) 83 Lazell v. Stone, 123 S.W.3d 6, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 84 Id. 85 Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995).
18 The Appellees testified that they considered the Appellant’s demand for payment of unpaid rents
and fees and the turnover instruction was how Appellant constructively evicted them.86 Texas
laws permit landlords to interfere with the tenant’s use and enjoyment of the leased premises by
changing the locks when Tenants fails to pay rent. Locking out the tenant for not paying rent
does not qualify as constructive eviction as long as the lockout complies with notice provisions
of the Texas Property Code Section 93.0002(f) or “the expressed terms of the lease.”87
Here, Appellant did not lock the Appellees out of the leased premises, and did not even make
threat of lockout even though it has the right to do so and to a number of other default remedies
without giving notice.88 Section 16.1 under Article XVI of the Leases clearly states that, “Upon
the occurrence of any such events of default, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever.” Section 16.1
continues to list a number of remedies at Appellant’s option, including but not exclusive to
entering and taking possession of the leased premises, locking up the premises and making
demands for the surrender of the leased premises. Although Appellant had these expansive
options to interfere with Appellees’ use and enjoyment of the leased premises, Appellees
produced no evidence whatsoever that Appellant’s behavior that matched that which is legally
necessary to support a yes answer to constructive eviction. Thus, the evidence is contrary to
Appellees’ claim that Appellant’s material act or omission substantially interfered with their use
or enjoyment of the leased property. Therefore, the Jury’s Answer to number 9 is contrary to the
evidence produced at trial and the court erred when it refused to grant Appellant’s motion to
disregard the jury’s answer to question number 9.
86 R.R. Vol. 4, pg. 140, lines 8-16. 87 Texas Property Code §93.0002(f); and Lazell v. Stone, 123 S.W.3d 6, 11–12 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 88 R.R. Vol. 3, pg. 198 line 4-20 and pg. 140 lines 8-16.
19 D. The trial court erred and abused its discretion by denying Appellant’s motion to disregard jury’s questions 7, 8, and 11 because the evidence was conclusive, as a matter of law, that Appellees breached the Leases entitling Appellant to damages and attorney’s fees.
Appellees offered no evidence at trial that Appellant breached the Leases by simply
exercising its rights under the Leases to demand payment of what it reasonably believed
Appellees owed. Further, the evidence is conclusive that, as a matter of law, even if the jury
found that Appellant breached his obligations under the contract, Appellees breached the Leases
first by defaulting on monetary and nonmonetary provisions of the Leases from the onset.
The question here is whether the jury’s answers to questions 7, 8 and 11 would have been
proper under a directed verdict. And, in the absence of evidence supporting the jury’s answers,
was the trial court obligated to disregard the jury answers. Alternatively, there is no evidence in
supporting Jury’s Answers to questions 7, 8 and 11.89
The jury found that the Appellees breached the Leases.90 That and the evidence presented
at trial supports Appellant’s claim that it should be granted damages and reasonable attorney’s
fees. Because there is no evidence to support the jury’s finding that Appellant breached the
Leases and or that Appellant breached first, Appellant should be awarded damages under
question 7. Because there is no evidence as a matter of law, the trial court was obligated to grant
Appellant’s Motion to Disregard Jury’s Answer number 7 and award Appellant damages and
award the Appellant reasonable attorney fees under question number 8 pursuant to §38.001 of
the Texas Civil Practice & Remedies Code. In pertinent part, this code section states
“A person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:
89 T.R.C.P § 301 90 R.R. Vol. 5, pg. 32, lines 11-12, 19-20.
20 (1) rendered services; (2) performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account; or (8) an oral or written contract.
Emphasis added. In addition to statutory provisions of the C.P.R.C., the Leases allow the
Appellant to collect attorney’s fees on account of any breach or default by Appellees of the
Lease. Section 16.5 under Article XVI of the Lease Agreements states that, “On account of any
breach or default by Tenant in Tenant’s obligations hereunder, it shall become necessary for
Landlord to employ an attorney to enforce or defend any of Landlords rights and remedies
hereunder. Tenant agrees to pay any reasonable attorney’s fees incurred by Landlord in such
connection.”91 Because the jury found that Appellees breached both of the Leases, pursuant to
C.P.R.C § 38.001 and as allowed for under the terms of the Leases, the trial court was obligated
to disregard the jury’s answer to questions number 8 and award Appellant attorney’s fees.
There was sufficient evidence at trial that Appellees breached the Leases and the jury
found so. As a matter of law, Appellees have no implied warranty of covenant of quiet
enjoyment and there was no evidence at trial that Appellant constructively evicted Appellees.
Therefore, there is no evidence to support the jury’s answer to question number 11 in awarding
Appellees attorney’s fees. Consequently, the trial court erred when it denied Appellant’s Motion
to Disregard Jury’s Answer to question number 11.
E. The trial court erred when it denied Appellant’s Motion for Instructed Verdict, because the there was no evidence to show that Appellant breached the Leases, breached the covenant of quiet enjoyment or constructively evicted Appellees.
The denial of a motion for directed verdict lays the foundation for challenging the
91 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases.
21 evidence on appeal by issues or points of error contending there was no evidence of certain fact
or that a fact was established as a matter of law.92 In reviewing a directed verdict, the appellate
court can consider any reason the directed verdict should have been granted, even one that is not
stated in the court’s order or in Appellant’s motion.93 In reviewing the evidence, the court should
determine whether there is any probative evidence to raise a fact issue.94 The court must consider
all evidence in the light most favorable to the party against whom the verdict was directed.95
However, when the evidence conclusively proves a fact that establishes the movant’s right to
judgment in a motion for directed verdict, or that negates the nonmovant’s right, the court should
direct a verdict when reasonable minds can only draw one conclusion from the evidence.96 As
illustrated more clearly above, the trial court erred in denying Appellant’s Motion for Directed
Verdict (Motion for Instructed Verdict) because, taking the evidence in light best favorable to
Appellees, the evidence clearly shows that Appellees breached the lease agreements on non-
monetary provisions and monetary provisions. Further, the trial court erred in denying
Appellant’s Motion for Instructed Verdict because the evidence shows that Appellees did not
have covenant of quiet enjoyment and Appellant did not constructively evicted Appellees.
Appellees alleged at trial that Appellant breached the Leases by making estimated
demands for water usage.97 Appellees further claimed that Appellant initiated the conflict by
making unfair demands of unauthorized fees. Appellees further claimed that Appellant was not
92 Weidner v. Sanchez, 14. S.W.3d 353, 366 (Tex.App-Houston [14th Dist.] 2000, no pet); White v. Liberty Eylau ISD, 920 S.W.2d 809, 813 (Tex.App-Texarkana 1996, writ denied). 93 Reyna v. First National Bank, 55 S.W.3d 58, 69 (Tex.App-Corpus Christi 2001, no pet.); Also See Gonzales v. Willis, 995 S.W.2d 729, 740 (Tex.App-San Antonio 1999, no pet). 94 Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986). 95 White v. Southwestern Bell Telephone Co., Inc., 651 S.W.2d 260, 261 (Tex., 1983) 96 Vance v. My Apt. Steak House, 677 S.W.2d 480, 483 (Tex.1984); and Westchester Fire Insurnace Co. v. Admiral insurance Co., 152 S.W.3d 172, 191 (Tex.App-Fort Worth 2004, pet. filed 2-3-05). 97 R.R. Vol. 4, pg. 33 lines 1-15, pg. 74, line 5 to pg. 75 line 25.
22 authorized to charge for the signage fees.98 Additionally, Appellees claimed under section 3 of
Exhibit A of the Lease Agreement that, “If Tenant wishes to use any pylon sign or sign frame
supplied by Landlord, Tenant will sign an agreement separate from this lease.” 99
In this case, Appellees did not offer the necessary evidence to show that Appellant’s
actions or omissions constituted a breach of the Leases, breach of warranty of quiet enjoyment or
that Appellant constructively evicted Appellees. The evidence and testimonies of witnesses were
contrary to Appellees’ claims.100 Article VIII of the Lease Agreements authorized Appellant to
charge Appellees an initial estimate of the water bill, and at a later time, adjust the estimate to
more accurately reflected Appellees’ usage.101 Further, the evidence was conclusive that from
the onset of the parties’ contractual relationship Appellees breached several provisions of the
Leases, both monetary and non-monetary.
Specifically, evidence at trial showed that Appellees breached several non-monetary
default provisions of the Lease Agreements from the onset of the contractual relationship,
including failing to maintain an insurance policy in accordance to the lease terms,102 failing to
obtain written consent from Appellant prior to making alterations to the leased premises103,
failing to present Appellant with a sketch of the pylon mounted sign placed on the premises,
failing to allow landlord entry to the leased premises on various occasions, failing to perform a 104 walk-through for the leases premises, failing to restore the leased premises to its original
condition subsequent to Appellant’s written requests, failing to provide Landlord with a thirty-
day notice prior to vacating both lease premises, and Appellees’ removal of lighting fixtures
98 R.R. Vol. 4. pg. 180 line 23 to pg. 182, line 3. 99 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases. 100 R.R. Vol. 3 pg. 44 line 4 to pg 47 line 9. 101 R.R. Vol. 6, Appellant’s Trial Exhibits “3” and “4” the Leases. 102 R.R. Vol. 3 pg. 57 line 6 to pg. 58 line 4. 103 R.R. Vol. 3 pg. 58 line 5 to pg. 59 line 7. 104 R.R. Vol. 3 pg. 70 line 24 to pg. 72 line 25, pg. 85, line 25 to pg. 86, line 2.
23 from both lease premises.105 Additionally, evidence at trial showed Appellees breached
numerous monetary provisions of the Leases over time, including but not exclusive to Appellees’
failure to pay rent, water bills, signage fees, common area maintenance fees and late fees.106
Because the trial court failed to make the determination of whether there is any probative
evidence to raise a fact issue, it erred in denying Appellant’s Motion for Instructed Verdict on
Appellees’ causes of action against Appellant for breach of contract, breach on covenant of quiet
enjoyment and constructive eviction.107
Evidence at trial showed that Appellees breached the lease agreement on both monetary
and non-monetary provisions. As such, Appellant was entitled to enforce the provisions of the
Leases relative to remedy at its discretion. 108 Due to Appellees’ breach of the Leases, they had
no right to the covenant of quiet and enjoyment. Section 22.5 under Article XXII of the Leases
clearly express the parties’ intent for Appellant to disclaim and for Appellees to waive, any
implied covenant of quiet enjoyment, if Appellees do not perform all of the covenants and
agreements under the lease, including monetary and nonmonetary provisions. Specifically,
pertinent part of Section 22.5 under Article XXII states that:
“Landlord covenants and agrees that, upon payment by Tenant of the rent and all other sums herein provided for, and upon the observance and performance of all the covenants and agreements on the Tenant’s part to be observed and performed hereunder, Tenant shall, subject to the terms and provisions of this Lease, at all times during the continuance of this Lease have the peaceable and quiet enjoyment and possession of the demised premises.”109
Appellees offered no evidence to show Appellant breached the Leases, breached the
implied covenant of quiet enjoyment or constructively evicted Appellees. Evidence regarding
105 R.R. Vol. 3 pg. 58 line 25 to pg. 59 line 7, pg. 70 lines 10-22, pg. 63 lines 1-25. 106 R.R. Vol. 3 at pg. 56 line 20-25; Appellant’s Exhibit 16; Vol. 3 R.R. at pg. 90, line 1-12. 107 Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986). 108 R.R. Vol. 6 pg. 25 lines 25-68; R.R. Vol. 4 pg. 43 lines 25-68. 109 R.R. Vol. 6 pg. 26 lines 65-68; and Vol. 4 R.R. pg. 44 lines 65-68.
24 Appellant’s written demands do not constitute a breach of contract or a breach of covenant of
quiet enjoyment. Further, Appellant’s final demand did not constitute constructive eviction, as
stated fully hereinabove. Evidence regarding Appellant making demands for signage fees, water
fees, utility fees, late fees, and interest are Appellant’s rights stated in the Leases. Under the
Leases’ default provisions, Appellant may, at its discretion, exercise its right; and additionally,
exercising one remedy does not waive or preclude Appellant’s other contractual rights.110
Evidence that Appellees failed to provide Appellant a sketch of the pylon sign and obtain
a separate signage contract only further shows that Appellees breached the 1255 Lease from the
onset of that lease term. The 1255 Lease requires Appellees to provide Appellant a copy of the
sketch of the sign and to enter into a separate signage contract prior to installing a sign on the
property’s pylon structure. Section 3 of Exhibit A of the Lease Agreement that, “If Tenant
wishes to use any pylon sign or sign frame supplied by Landlord, Tenant will sign an agreement 111 separate from this lease.” However, the requirement of a signage agreement apart from the
lease is not a condition upon which Appellant had to comply prior to Appellant charging
Appellees a signage fee. To argue that Appellant is required to get a signage agreement prior to
collecting signage fee would allow Appellees to be unjustly enriched if the Appellees installed
the signed without written approval and without requesting a signage agreement and without
paying for the signage fees. Such argument from Appellees is contrary to the law and contrary to
any reasonable interpretation of the 1255 Lease.
Because the trial court failed to consider all evidence and/or the lack of evidence and
because it failed to find that Appellees offered no probative evidence that Appellant breached the
Leases, breached covenant of quiet enjoyment or constructively evicted the Appellees, it erred in
110 R.R. Vol. 6 pg. 25 lines 25-68; R.R. Vol. 4 pg. 43 lines 25-68. 111 R.R. Vol. 4 pg. 72 line 10 to pg. 73 line 21.
25 denying Appellant’s Motion for Instructed Verdict on same. Because Appellees’ evidence had
no probative value and Appellees offered no more than a scintilla of evidence supporting their
claims, it is a matter of law that the trial court was obligated to grant Appellant’s Motion for
Instructed Verdict and dismiss Appellees’ claims for breach of contract, breach of the covenant
of quiet enjoyment and constructive eviction. Allowing these unsupported questions to be part
of the jury questions was error by the trial court Therefore, Appellant respectfully requests this
Court reverse the trial court’s Amended Final Judgment in favor of Appellant in a manner that is
consistent with the evidence.
26 PRAYER
WHEREFORE, premises considered, Appellant prays that the Court grant its appeal and
reverse the Amended Final Judgment, dated October 10, 2014 and order the trial court to find in
favor of Appellant, and for such additional and further relief to which it may show itself justly
entitled.
2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Ph: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com
By: /s/ Steven Tuan Pham Steven Tuan Pham Texas State Bar #24052899 Vy-Vivian Nguyen Texas State Bar #24073383 Attorneys for Appellant, 1221 Eldridge Road, Inc.
27 CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word 2007 and that, according to the program’s word-count function; the sections included in TRAP 9.4(i)(1) contain 12,220 words.
2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com
By: /S/ Steven Tuan Pham Steven Tuan Pham
28 CERTIFICATE OF SERVICE
I, Steven Tuan Pham, hereby certify that I have served Appellees by and through their attorneys of record the foregoing instrument on January 20, 2015 pursuant to the Texas Rules of Civil Procedure as indicated below.
Ted A. Cox, P.C. Attn: Jennifer Fleck, Attorney at Law 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Via e-Filing Notification
Ted A. Cox, P.C. Attn: Ted A. Cox, Attorney at Law 1225 W. 34th Houston, TX 77018 Phone: 713-956-9400 Via e-Filing Notification
2500 Wilcrest Drive, Suite 300 Houston, Texas 77042 Phone: (713) 517-6645 Fax: (888) 824-8539 Email: stevenphamesq@yahoo.com
29 APPENDIX
Appellant’s Motion for Instructed Verdict . . . . . . . . . Vol. 4 pg. 187 line 12 pg. – pg. 200 line 14
Appellant’s Motion To Disregard Jury Answers…………………….…..CR Vol. 3 pp. 268 - 298
Amended Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . .. ……….... CR Vol. 3 pp. 311 – 312
Appellant’s Notice of Appeal………………………………………….. CR Vol. 3 pp. 314 – 316
Related
Cite This Page — Counsel Stack
1221 Eldridge Road, Inc. v. Life Changing Ministries and Fellowship, Inc. Eric Stephens, and Jennifer Stephens, Counsel Stack Legal Research, https://law.counselstack.com/opinion/1221-eldridge-road-inc-v-life-changing-ministries-and-fellowship-inc-texapp-2015.