Downwind Aviation, Inc. v. Orange County

761 S.W.2d 455, 1988 Tex. App. LEXIS 3107, 1988 WL 134496
Procedural entryThis page is a short order in Downwind Aviation, Inc. v. Orange County. Read the opinion of the Court — 1988 Tex. App. LEXIS 2926
Court of Appeals of Texas·Decided November 3, 1988·No. No. 09-87-176 CV·Published

Opinion

OPINION

DIES, Chief Justice.

In 1974, Orange County leased a portion of land located at the Orange County Airport to Professional Aviation Services Company (“Professional”). The tract leased to Professional included a small hangar. The primary term of the lease began January 1, 1975, and ended December 3, 1984, but the tenant had the option to extend the lease for another ten-year period. In 1978, Professional assigned this lease to Downwind Aviation, Inc. (“Downwind”), with Orange County’s approval.

In April, 1983, Downwind subleased the property to Baldwin Aviation, Inc. (“Baldwin”), and Baldwin agreed to assume all of Downwind’s obligations under the primary lease and to pay rent to Downwind. Two of the obligations Baldwin agreed to assume were expressed in the original lease as follows:

“Tenant further covenants and agrees that it will at all times during the term of this lease, or any extension thereof, at its own expense, maintain and keep in force liability insurance insuring [Orange County] and the Tenant jointly, as their respective interest may appear, in the amount of $100,000.00/$300,000.00 for injury to any one person or any one occurrence and $50,000.00 for property damage, against loss, liability or damage which may result to [Orange County] and/or Tenant, or either of them, from accident or casualty whereby any person or persons whomsoever may be injured or killed or sustain property damage on the leased premises. Tenant shall furnish to [Orange County] a certificate of such insurance.”

The lease also provided that if the tenant defaulted in any of the covenants in the lease which it had agreed to keep or perform, and if such default continued for ten days after written notice of such default or breach had been mailed to the tenant, the County could terminate the lease. On July 6, 1983, Julia Bacom, the Orange County Auditor, mailed a letter to George MacDo-nough, president of Downwind, which stated the following:

“Dear Mr. MacDonough:
“According to Orange County Auditor’s records, your lease as a fixed base operator at the Orange County Airport requires that you carry liability insurance holding Orange County harmless for any accidents and mishaps connected with your fixed base operations. The last certificate of insurance you furnished us expired October 6, 1981. If you do not furnish us with proof of insurance coverage within ten days of the date of this letter, Orange County will consider the contract as having been breached.
“Although Downwind has signed a sub-lease with Baldwin Aviation, our contract is with Downwind Aviation, and Orange County is looking to Downwind Aviation for prompt payment of the rent as specified under this contract....” (emphasis theirs)

On July 25, 1983, the Orange County Commissioners’ Court passed a resolution cancelling this lease with Downwind.

Downwind filed suit alleging that Orange County wrongfully terminated Downwind’s lease because proof of liability insurance had, in fact, been provided. Therefore, Downwind alleged, Orange County’s wrongful termination of the lease caused damages to Downwind of at least $47,-940.00, the minimum rent payable by Baldwin had Downwind exercised its option to extend the term of the lease for another ten years. Downwind also alleged, alternatively, that if Orange County was not provided proof of insurance, such failure to provide proof of insurance constituted a [457]*457breach of Baldwin’s obligations under its sublease with Downwind, resulting in Downwind’s damages as stated above.

Trial was to a jury. The jury found that Orange County wrongfully terminated Downwind’s lease and that such termination caused Downwind damage. The jury found that $26,950.00 paid in cash at the time of trial would reasonably compensate Downwind for its damages. The jury found that Baldwin did not breach the terms of its sublease agreement with Downwind.

Downwind moved for judgment against the County based upon the jury finding of a wrongful termination of the lease, and moved that the trial court disregard the jury’s finding as to the amount of damages and render judgment in Downwind’s favor for $47,950.00. Orange County moved for judgment notwithstanding the verdict because there was no evidence that any certificate of insurance showing Orange County as an insured party was ever provided to the County as required by Downwind’s lease. The trial court sustained the County’s motion for judgment notwithstanding the verdict and rendered judgment that Downwind take nothing from Orange County or Baldwin.

Downwind (Appellant herein) perfected this appeal from the judgment of the trial court. By its first point of error Appellant urges that the trial court erred in ruling that there was no evidence to support the jury’s finding that Orange County wrongfully terminated the lease because the evidence showed that Baldwin had fulfilled all lease requirements. A trial court’s decision to grant a motion for judgment notwithstanding the verdict may be sustained only where there is no evidence upon which the jury could have made the findings relied upon. Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982). In determining whether there was evidence to support a jury finding, all evidence must be considered in the light most favorable to the party against whom the motion is sought and every reasonable inference deducible from the evidence is to be indulged in that party’s favor. Id.

At trial, Charles Baldwin of Baldwin Aviation, Inc., testified that he had fulfilled his obligations under the sublease agreement with Downwind to provide insurance and to provide proof of insurance to Orange County. The record also contains the following testimony by Mr. Baldwin:

“Q [COUNSEL FOR DOWNWIND:] And when Orange County terminated George MacDonough — or Downwind Aviation’s lease, it’s your position that you had, in fact, provided liability insurance and provided notice of that insurance to Orange County at that time?
“A [MR. BALDWIN:] For me, yes sir.
“Q [COUNSEL FOR DOWNWIND:] For you as fixed base operator at the Orange County Airport; is that correct?
“A [MR. BALDWIN:] That’s correct. I never listed Downwind Aviation on my insurance.”

The original liability insurance policy referred to by Mr. Baldwin was issued in 1980 and was renewed so that it was in effect through July 29, 1983. This policy clearly shows Baldwin Aviation, Inc., as the only party insured. Mr. Baldwin identified plaintiff’s (Downwind’s) exhibit number six as the insurance renewal certificate for the period from July 29,1982, through July 29, 1983. He stated that according to notations written on the renewal certificate, “8/17/82” and “To Commissioners and County Auditor and Judge,” the certificate was sent to Orange County.

Delores Aycock, the insurance agent for Baldwin Aviation, testified that Baldwin purchased an “Owner’s, Landlord’s and Tenant’s” premises liability policy that covered all of the tenant’s operations at the Orange County Airport. It was undisputed that the coverage limits of the policy complied with the requirements of the lease between Downwind and Orange County. Ms.

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Downwind Aviation, Inc. v. Orange County, 761 S.W.2d 455, 1988 Tex. App. LEXIS 3107, 1988 WL 134496 (Tex. Ct. App. 1988).

761 S.W.2d 455 (Downwind Aviation, Inc. v. Orange County) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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