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Crown Constr. Co. v. Huddleston Court of Appeals of Texas, Fourth District, San Antonio December 17, 1997, Delivered ; December 17, 1997, Filed No. 04-96-00991-CV
Reporter 961 S.W.2d 552; 1997 Tex. App. LEXIS 6452
Prior History: [**1] From the 224th Judicial District, facts surrounding the delayed delivery of notice did not Bexar County, Texas. Trial Court No. 96-CI-15376. warrant an award of equitable relief. Accordingly, the Honorable David Peeples, Judge Presiding. judgment was affirmed.
Disposition: Affirmed. Outcome
Core Terms The summary judgment, which was granted in favor of appellee in the lease renewal dispute with appellant, was affirmed because the court concluded that appellant failed to notice, lease, trial court, delivery, personal delivery, equitable give sufficient notice of given to extend the lease in relief, contends, summary judgment motion, deliver, question, and was not entitled to equitable relief. ambiguous, door, summary judgment, issue of fact, days, tape, no writ, lessee, terms of the lease, matter of law, provides, lessor, certified mail, renewal option, forfeiture, LexisNexis® Headnotes clarified, expired, argues, renew, non-movant, delayed Civil Procedure > ... > Defenses, Demurrers & Objections > Case Summary Affirmative Defenses > Burdens of Proof Civil Procedure > Appeals > Summary Judgment Review > Procedural Posture General Overview Civil Procedure > Appeals > Summary Judgment Review > Appellant sought review of summary judgment granted in Standards of Review favor of appellee by the 224th Judicial District, Bexar County (Texas) in a declaratory judgment action regarding Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview a lease renewal dispute. Civil Procedure > ... > Summary Judgment > Burdens of Overview Proof > Movant Persuasion & Proof
Appellant sought review after the trial court granted summary Civil Procedure > ... > Summary Judgment > Hearings > General Overview judgment in favor of appellee in a declaratory judgment action regarding a lease renewal dispute. Appellant Civil Procedure > ... > Summary Judgment > Motions for contended, among other things, that the trial court erred Summary Judgment > General Overview because a fact issue existed as to whether sufficient notice Civil Procedure > ... > Summary Judgment > Entitlement as was given to extend the lease in question, and whether Matter of Law > General Overview appellant was entitled to equitable relief. The court found that appellant failed to properly deliver notice of its intent to HN1 In order to prevail on a motion for summary judgment, exercise its lease renewal option under the terms of the the movant either must prove that no genuine issue of lease. Specifically, the lease in question provided for notice material fact exists, affirmatively disprove at least one either by personal deliver to appellee, or to appellee’s agent, element of the plaintiff’s cause of action, or prove an or by certified mail. Here, appellant failed to exercise affirmative defense as a matter of law. In any case, the personal delivery because the renewal notice was only movant bears the burden of proving that he is entitled to tapped to the agent’s door. Further, the court found that the judgment as a matter of law. On review, the appellate court
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must take as true all evidence favoring the non-movant and Contracts Law > Defenses > Ambiguities & Mistakes > General indulge every reasonable inference in his favor. Overview Contracts Law > Formation of Contracts > Mistake > General Civil Procedure > Pleading & Practice > Pleadings > Answers Overview
Civil Procedure > ... > Pretrial Judgments > Default & Default HN5 If a contract is worded so that a court may properly Judgments > General Overview give it a definite or certain legal meaning or interpretation, Civil Procedure > ... > Pretrial Judgments > Default & Default then it is not ambiguous. A contract is ambiguous only when Judgments > Default Judgments there exists a genuine uncertainty as to which of two meanings is proper. However, an ambiguity does not arise Civil Procedure > Judgments > Summary Judgment > General simply because the parties advance conflicting interpretations Overview of the contract. In order for an ambiguity to exist, both Civil Procedure > Appeals > Summary Judgment Review > interpretations must be reasonable. General Overview Contracts Law > Contract Interpretation > General Overview Civil Procedure > Appeals > Summary Judgment Review > Appealability HN6 All terms of a contract must be given effect where Civil Procedure > ... > Summary Judgment > Burdens of possible. Proof > General Overview Contracts Law > Remedies > Equitable Relief > General Civil Procedure > ... > Summary Judgment > Motions for Overview Summary Judgment > General Overview Contracts Law > Types of Contracts > Option Contracts HN2 A non-movant that fails to file a response in a summary judgment proceeding is limited to raising legal HN7 It is well settled that strict compliance with the sufficiency points on appeal. While summary judgments provisions of an option contract is mandatory in nature, and, must stand or fall on their own merits and the non-movant’s generally, equitable relief will not be extended absent such failure to answer cannot result in a default summary compliance. Acceptance of an option, unless excused in rare judgment, if the non-movant does in fact fail to respond, all cases of equity, must be unqualified, unambiguous, and that may be argued on appeal is whether the movant strictly in accordance with the terms of the agreement established his right to summary judgment as a matter of Accordingly, a failure to exercise an option according to its terms, including untimely or defective acceptance, is simply law. ineffectual, and legally amounts to nothing more than a rejection. Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview Civil Procedure > ... > Relief From Judgments > Excusable Civil Procedure > ... > Summary Judgment > Supporting Mistakes & Neglect > Mistake Materials > Affidavits Civil Procedure > Judgments > Relief From Judgments > Independent Actions HN3 An affidavit is an appropriate means of responding to a motion for summary judgment. Contracts Law > Defenses > Ambiguities & Mistakes > General Overview Contracts Law > Contract Interpretation > General Overview Contracts Law > Defenses > Unconscionable > General Contracts Law > Defenses > Ambiguities & Mistakes > General Overview Overview Contracts Law > Remedies > Equitable Relief > General Overview HN4 Whether a contract is ambiguous is a question of law Contracts Law > Types of Contracts > Option Contracts for the court to decide. If the contract is ambiguous, then the question of the true meaning of the contract becomes one of HN8 In order to establish a right to relief under the doctrine fact for a jury to decide. of unconscionable equity, the party seeking equitable relief must show (1) that the delayed failure to exercise an option Contracts Law > Contract Interpretation > General Overview contract was the result of an honest and justifiable mistake; Contracts Law > Contract Interpretation > Ambiguities & and (2) that, if the delay is not excused, unconscionable Contra Proferentem > General Overview hardship will result.
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Civil Procedure > ... > Defenses, Demurrers & Objections > Opinion Affirmative Defenses > General Overview
Civil Procedure > ... > Defenses, Demurrers & Objections > [*554] Appellant, Crown Construction Company, Affirmative Defenses > Unclean Hands Inc.(″Crown″), appeals from the granting of summary judgment in favor of appellee, H. Glenn Huddleston Contracts Law > Types of Contracts > Lease Agreements > General Overview (″Huddleston″) in a declaratory judgment action regarding a lease renewal dispute. In five points of error, Crown HN9 The doctrine of unclean hands is applied to one whose contends that the trial court erred in granting Huddleston’s own conduct in connection with the matter at issue has been motion for summary judgment because: (1) a fact issue unconscientious, unjust, or marked by a want of good faith, exists as to whether sufficient notice was given to extend the or one who has violated the principles of equity and lease in question; (2) Crown is entitled to equitable relief as righteous dealing. a matter of law; (3) a fact issue exists as to whether Crown is entitled to equitable relief; (4) a fact issue exists as to Civil Procedure > ... > Defenses, Demurrers & Objections > whether Crown’s delay in giving notice was due to a cause Affirmative Defenses > Unclean Hands beyond its control; [**2] and (5) the trial court erred in failing to identify the real property at issue in its order Contracts Law > Remedies > Equitable Relief > General granting summary judgment. Crown also brings a Overview supplemental point of error in which it contends, generally, that Huddleston failed to establish that there are no issues of HN10 It is well settled that a party seeking equity cannot fact in dispute and that he is entitled to judgment as a matter come into a court with unclean hands. of law. We affirm the judgment of the trial court. Civil Procedure > Appeals > Appellate Jurisdiction > Final FACTUAL AND PROCEDURAL BACKGROUND Judgment Rule In 1976, Huddleston leased commercial property to HN11 While it is true that there can be only one final Southland Corporation for a term of twenty years. In July of appealable judgment in any lawsuit, Tex. R. Civ. P. 301, as 1992, Crown took the lease by assignment. Under the terms long as the trial court has plenary power, a judgment is not of the lease, the lease terminated on August 31, 1996. technically final. However, the lease provided for a five-year renewal option, which required written notification of the exercise of the Civil Procedure > Judgments > Relief From Judgments > option on or before June 2, 1996. Altering & Amending Judgments
Governments > Courts > Authority to Adjudicate Crown contends that it gave written notice of its intent to renew the lease by taping the notice to the door of HN12 Pursuant to Tex. R. Civ. P. 329b, the trial court has the Huddleston’s office on June 2, 1996. Huddleston denies power to correct, modify, vacate, or reform a judgment receipt of that notice. On June 12, 1996, Crown delivered a during the 30 days that it retains plenary jurisdiction over a second notice to Huddleston, dated June 2, 1996. Huddleston case. acknowledges receiving the second notice. Huddleston, however, refused to renew the lease because Crown’s notice Counsel: FOR APPELLANT: Samuel H. Bayless, A. W. [**3] of its intent to renew the lease was not timely given. Worthy, GRESHAM, DAVIS, GREGORY, WORTHY & Huddleston further contends that at the time he denied the MOORE, P.C., San Antonio, TX. lease renewal, Crown was in default of the lease provisions by failing to pay common area maintenance fees, tax escalation fees, and insurance escalation fees. FOR APPELLEE: Thomas G. Kemmy, San Antonio, TX. Crown brought suit against Huddleston, seeking a judgment Judges: Opinion by: Karen Angelini, Justice. Sitting: Phil declaring that it validly exercised it option to extend the Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen term of the lease, or, in the alternative, that it is excused Angelini, Justice. from strict compliance with the notice provision in the lease based upon principles of equity. Huddleston filed a motion Opinion by: KAREN ANGELINI for summary judgment, alleging that Crown failed to timely exercise its option under the lease and that Crown is not
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entitled to judgment based [*555] upon equity because it In this case, Crown did not file a response to Huddleston’s was in default of the lease agreement at the time it attempted motion for summary judgment, but it did file, in opposition to exercise its option. Crown filed an affidavit in response to to Huddleston’s motion, the affidavit of Masood Chughtai, Huddleston’s motion. Following a hearing, the trial court an owner of Crown Construction Company, Inc. Chughtai’s granted Huddleston’s motion for summary judgment. All affidavit controverted many of the facts alleged in other issues raised by the pleadings in this case were Huddleston’s motion. There is a conflict in authority severed and assigned a new cause number. regarding whether the filing of an affidavit alone in response to a motion for summary [**6] judgment qualifies as a ARGUMENT AND AUTHORITY response as contemplated by Rule 166a. Compare Shank, Irwin,Conant & Williamson v. Durant, Mankoff, Davis, A. Standard of Review Wolens & Francis, 748 S.W.2d 494, 498 (Tex. App.--Dallas 1988, no writ) (holding affidavit did not constitute written HN1 answer or other response expressly presenting non-movant’s issues to the trial court) with Hall v. Stephenson, 919 S.W.2d In order to prevail on a motion for summary [**4] 454, 462 (Tex. App.--Fort Worth 1996, writ denied) (finding judgment, the movant must either prove that no genuine that ″affidavits alone are an appropriate way to respond to a issue of material fact exists, affirmatively disprove at least summary judgment motion″); Rosas v. Bursey, 724 S.W.2d one element of the plaintiff’s cause of action, or prove an 402, 408 (Tex. App.--Fort Worth 1986, no writ) (finding that affirmative defense as a matter of law. Nixon v. Mr. Property an ″affidavit is an appropriate means of responding to a Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex. motion for summary judgment″) and Engel v. Pettit, 713 App.--Houston [14th Dist.] 1994, no writ). In any case, the S.W.2d 770, 772 (Tex. App.--Houston [14th Dist.] 1986, no movant bears the burden of proving that he is entitled to writ) (construing portion of the Rule 166a(c) which provides judgment as a matter of law. TEX. R. CIV. P. 166a(c). On that a nonmovant may file ″an opposing affidavit or other review, the appellate court must take as true all evidence written response″ within seven days of a hearing to mean favoring the non-movant and indulge every reasonable that the filing of an affidavit alone, without any additional inference in his favor. Park Place Hosp. v. Milo, 909 S.W.2d responsive document, is adequate as a response under the 508, 510 (Tex. 1995); Montgomery v. Kennedy, 669 S.W.2d rule); see TIMOTHY PATTON, SUMMARY JUDGMENTS 309, 311 (Tex. 1984). IN TEXAS § 4.04 (2nd ed. 1996). [**7]
We find that HN3 an affidavit is an appropriate means of B. Scope of Review responding to a motion for summary judgment. We further find that, in this case, Crown’s affidavit placed the court and Huddleston argues that, because Crown failed to respond to Huddleston on notice of issues which raise fact questions in Huddleston’s motion for summary judgment at the trial the case, thus preserving those issues for appeal. Our review level, the scope of Crown’s appeal should be limited. It is of [*556] Crown’s appeal will, therefore, go beyond a legal true that HN2 a non-movant who fails to file a response in sufficiency review. a summary judgment proceeding is limited to raising legal sufficiency points on appeal. City of Houston v. Clear Creek C. Adequate Notice Basin Auth. [**5] , 589 S.W.2d 671, 678 (Tex. 1979); McCord v. Memorial Medical Center Hosp., 750 S.W.2d 1. Ambiguity in the Lease Agreement 362, 364 (Tex. App. --Corpus Christi 1988, no writ). ″Issues not expressly presented to the trial court by written motion, In its first point of error, Crown contends that the trial court answer or other response shall not be considered on appeal erred in granting summary judgment in favor of Huddleston as grounds for reversal.″ McConnell v. Southside Ind. because a fact issue exists regarding whether, under the School Dist., 858 S.W.2d 337, 343 (Tex. 1993) (quoting terms of the lease, notice affixed to Huddleston’s door TEX. R. CIV. P. 166a(c)). While summary judgments must constituted sufficient notice to extend the lease. The lease at stand or fall on their own merits and the non- movant’s issue provides that Crown had an option to extend the term failure to answer cannot result in a ″default″ summary of the lease for a period of five years. The lease further judgment, if the non-movant does in fact fail to respond, all provides that, if Crown intended to exercise the option, it that may be argued on appeal is whether the movant was required to give Huddleston written notice at least established his right to summary judgment as a matter of ninety days prior to the expiration of the then current lease law. Id.; Clear Creek, 589 S.W.2d at 678. term. As to the term ″notice,″ the lease states that:
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Any notices required or permitted hereunder shall be in delivery″ is not reasonable when viewed in light of the writing and delivered either in person [**8] to the other remainder of the notice provision of the lease. See Coker v. party or the other party’s authorized agent, or by United Coker, 650 S.W.2d 391, 394 (Tex. 1983) (holding ambiguity States Certified Mail, Return Receipt Requested, postage in a contract is determined by looking at the entire contract fully prepaid…. and giving effect to each of its provisions). The lease provides for notice either by personal delivery to the Crown contends, first, that the phrase ″delivered in person″ recipient or to the recipient’s agent or by certified mail, does not require in hand delivery to the receiving party, but return receipt requested. To interpret personal delivery to that it refers to the action taken by the delivering party. mean that the delivering party may simply drop off notice at Therefore, according to Crown, it personally delivered the the recipient’s office with no guarantee that it was ever notice to Huddleston, under the terms of the lease, when Mr. received would be at odds with the remainder of the notice Chughtai, Crown’s owner, personally taped the notice to provision. Specifically, such an interpretation would discount Huddleston’s door. Crown goes on to argue that because the requirement that delivery of notice by mail must be via Huddleston denies receiving the notice, a fact issue exists as certified mail, return receipt requested. to whether the notice was given. In the alternative, Crown argues that the lease agreement is ambiguous as it fails to The certified mail requirement emphasizes the importance specifically define personal delivery, and as such, the case of confirmation of receipt of notice. Otherwise, delivery by should be remanded for a determination of the intended regular mail [*557] would have been acceptable under the meaning of the lease. lease. The apparent purpose of certified mail, return receipt requested is to provide proof of delivery. [**11] The Accordingly, before the issue of whether Crown did or did corollary to that requirement in personal delivery situations not tape the notice to the door is reached, it will be would be actual person to person delivery. Absent such a necessary to determine whether such a delivery constitutes requirement, there would be, as there is in this case, no personal delivery as contemplated by the lease. As discussed proof of the personal delivery. It is not a reasonable above, Crown argues that personal delivery refers to the interpretation of the lease to say that where there are two action of the deliverer only, [**9] while Huddleston equally acceptable means of delivering notice, one option contends that personal delivery means both personal delivery would require proof of delivery while one option would not. by the deliverer and personal receipt by the receiver. Further, the personal delivery requirement allows for delivery to the receiving party or his agent. If personal delivery HN4 Whether a contract is ambiguous is a question of law meant that the delivering party could tape notice to the for the court to decide. Friendswood Dev. Co. V. McDade + receiving party’s door, there would be no need for the Co., 926 S.W.2d 280, 282 (Tex. 1996). If the contract is option of delivering to the receiving party’s agent. HN6 All ambiguous, then the question of the true meaning of the terms of the contract must be given effect where possible. contract becomes one of fact for a jury to decide. Columbia Coker, 650 S.W.2d at 394. Accordingly, the only reasonable Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, interpretation of the term ″delivery in person″ in the lease at 589 (Tex. 1996). issue includes a requirement that the delivery be actual hand HN5 If a contract is worded so that a court may properly to hand delivery. Therefore, by taping notice to Huddleston’s give it a definite or certain legal meaning or interpretation, door, Crown failed to properly deliver notice of its intent to then it is not ambiguous. Friendswood, 926 S.W.2d at 282. exercise its lease renewal option under the terms of the A contract is ambiguous only when there exists a genuine lease. Crown’s first point of error is overruled. uncertainty as to which of two meanings is proper. Columbia 2. Events [**12] Beyond Crown’s Control Gas, 940 S.W.2d at 589. However, an ambiguity does not arise simply because the parties advance conflicting In its fourth point of error, Crown contends that the trial interpretations of the contract. Forbau v. Aetna Life Ins. Co., court erred in granting Huddleston’s motion for summary 876 S.W.2d 132, 134 (Tex. 1994). In order for an ambiguity judgment because a fact issue exists as to whether Crown’s to exist, both interpretations must be reasonable. National delay in giving notice was due to events beyond Crown’s Union Fire Ins. Co. v. CBI Industries, Inc., 907 S.W.2d 517, control. In making this argument, Crown relies on paragraph 520 (Tex. 1995). 38D of the lease, which provides that:
In this case, [**10] we find no ambiguity in the notice Whenever a period of time is herein provided for LESSOR provision of the contract. Crown’s interpretation of ″personal or LESSEE to do or perform any act or thing, LESSOR shall
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not be liable or responsible for, and there shall be excluded substantially harmed by forfeiture of the lease while from the computation of such period of time, any delays due Huddleston would suffer no harm if the lease were extended. to strikes, riots, acts of God, shortages of labor or materials, national emergency, acts of a public enemy, governmental We begin by noting the strict compliance requirement in restrictions, laws or regulations, or any other cause or option contract situations. HN7 It is well settled that strict causes, whether similar or dissimilar to those enumerated, compliance with the provisions of an option contract is beyond its reasonable control. mandatory in nature, and, generally, equitable relief will not be extended absent such compliance. See Jones v. Gibbs, Crown argues that the summary judgment evidence in this 133 [**15] Tex. 627, 130 S.W.2d 265, 271 (1939). Acceptance case shows that Crown attempted to deliver notice of its of an option, unless excused in rare cases of equity, must be intent to extend the lease on June 2, 1996, but that it was unqualified, unambiguous, and strictly in accordance with prohibited from doing so because Huddleston’s office was the terms of the agreement. Zeidman v. Davis, 161 Tex. 496, closed and Huddleston was not there to receive the notice in 342 S.W.2d 555, 558 (1961). Accordingly, a failure to person. Crown contends [**13] that whether Huddleston exercise an option according to its terms, including untimely was in his office, or could otherwise be found, was a matter or defective acceptance, is simply ineffectual, and legally beyond Crown’s control. Therefore, according to Crown, amounts to nothing more than a rejection. Atterbury v. the fact that it did not actually deliver notice to Huddleston Brison, 871 S.W.2d 824, 829 (Tex. App.--Texarkana 1994, until June 12, 1996, should not be considered in determining writ denied) (Cornelius, J., concurring). whether the notice was timely given. We disagree. The doctrine of unconscionable, inequitable, or First, a reasonable interpretation of paragraph 38D is that it disproportionate forfeiture was established in the case of applies only to Huddleston, the lessor. The paragraph states Jones v. Gibbs. The court in that case stated that a lessee’s that, in regard to time periods in which the lessor or lessee delay in giving written notice of its intention to exercise a has to perform under the lease, ″the lessor shall not be liable lease renewal option should be excused when the delay has or responsible for…any cause…beyond its reasonable been slight, the loss to the lessor would be small, and undue control.″ Under this interpretation of the lease, Crown, as hardship would result if relief was withheld. 130 S.W.2d at the lessee, is not entitled to the protection afforded by 272. At least one court has held the language in Jones to be paragraph 38D. dicta and refused to apply the doctrine in situations in which a lessee simply neglected to exercise its renewal option on In any event, it is undisputed that Crown did not attempt to time. See Reynolds-Penland [**16] Co. v. Hexter & deliver notice after allegedly taping it to Huddleston’s door Lobello, 567 S.W.2d 237, 240 (Tex. Civ. App. --Dallas 1978, until June 12, 1996, ten days after the option deadline writ dism’d by agr.). This court, however, has recognized expired. Even if we were to construe Huddleston’s absence the doctrine and applied it in a case involving the delayed from his office on a Sunday as an event beyond Crown’s exercise of an option to extend a lease. See Inn of the Hills, control, there were at least eight business days following Ltd. v. Schulgen & Kaiser, 723 S.W.2d 299, 301 (Tex. that uncontrollable event in which Crown could have App.--San Antonio 1987, writ ref’d n.r.e.). HN8 In order to reattempted delivery. Crown does not [**14] allege that establish a right to relief under the doctrine of unconscionable events beyond its control occurred on June 3, 1996, through equity in cases such as this, the party seeking equitable June 12, 1996. Therefore, paragraph 38D does not exonerate relief must show (1) that the delayed failure to exercise an Crown from the untimely delivery of its notice, even if we option contract was the result of an honest and justifiable do not consider June 2, 1996, in the computation of time. mistake; and (2) that, if the delay is not excused, Crown’s fourth point of error is overruled. unconscionable hardship will result. See Jones, 130 S.W.2d at 273; Casa El Sol- Acapulco, S.A. v. Fontenot, 919 S.W.2d D. Equity and the Doctrine of Unconscionable Forfeiture 709, 715 (Tex. App. --Houston [14th Dist.] 1996, writ dism’d by agr.). In its second point of error, Crown contends that it is entitled to equitable relief from the effect of its untimely In this case, the evidence, other than whether the notice was notice as a matter of law. In its third point of error, Crown taped to Huddleston’s door on June 2, 1996, is undisputed. contends that there is a fact issue regarding whether it is Crown acknowledges that it was aware, prior to June 2, entitled to equitable [*558] relief. Crown bases its equitable 1996, that the option expired on that date. It also argument on the fact that it delivered notice to Huddleston acknowledges that after it allegedly taped the notice to only ten days after the option expired and that it would be Huddleston’s office door, it did [**17] not attempt to
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contact Huddleston again until June 12, 1996. Then, on June Huddleston urges that Crown cannot claim entitlement to 12, 1996, Crown delivered notice in writing to Huddleston’s equitable relief because Crown was in breach of the lease at agent. Crown never confirmed receipt of the June 2 notice. the time it attempted to exercise its option. Crown In the face of undisputed facts, the propriety of equitable acknowledges that it has failed to pay common area relief is a question of law for the court, subject to an abuse maintenance fees as required by the lease; however, because of discretion standard of review on appeal. Fontenot, 919 the lease provides that such failure shall not result in a S.W.2d at 715. Because the facts surrounding Crown’s forfeiture of the lease, Crown argues that it’s failure to pay equitable argument are undisputed, Crown’s third point of the fees cannot be used as a bar to its request for equitable error alleging that a fact issue exists regarding whether relief. Crown’s reasoning is flawed. Even if failure to pay equity should be applied in this case is overruled. We must common area maintenance fees cannot work to cause a now consider, whether the trial court erred in finding that forfeiture of the actual lease, it does constitute a breach of Crown was not entitled to equitable relief as a matter of law. the terms of the lease. This is not a situation involving the forfeiture of an ongoing lease; rather, it involves the failure We find that the facts surrounding the delayed delivery of to exercise an option to extend the [**20] original lease notice in this case do not warrant an award of equitable term. Therefore, there is nothing to prohibit Crown’s breach relief. As discussed above, in order to be entitled to from operating as a bar to Crown’s assertion of an equitable equitable relief, Crown must demonstrate that its delayed remedy in its attempt to renew the lease. notice was the result of an honest and justifiable mistake. See Jones, 130 S.W.2d at 273. Such a mistake was shown in HN9 The doctrine of unclean hands is applied to one whose Jones where the lessee made his lease renewal option own conduct in connection with the matter at issue has been payment to the wrong party based upon a previous, but no unconscientious, unjust, or marked by a want of good faith, [**18] longer effectual, communication by the lessor. Id. at or one who has violated the principles of equity and 267. In Inn of the Hills, this court found an honest and righteous dealing. Ligon v. E.F. Hutton & Co., 428 S.W.2d justifiable mistake where the lease renewal option payment 434, 437 (Tex. Civ. App.--Dallas 1968, writ ref’d n.r.e.); 34 was due shortly after the lease assignment and [*559] the TEX. JUR .3d Equity § 32 (1984). Because Crown is in new lessee was unaware of the option deadline. Inn of the breach of the lease it is now attempting to extend, it may not Hills, 723 S.W.2d at 300. seek relief from the provisions of that lease based upon claims of equity. HN10 It is well settled that a party seeking In this case, Crown has failed to show an honest and equity cannot come into a court with unclean hands. justifiable mistake. The summary judgment evidence Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361, indicates that Crown was aware of the option deadline when 366 (Tex. App.--Fort Worth 1990, no writ); Village Medical it assumed the lease. It was also aware of the option Center, Ltd. v. Apolzon, 619 S.W.2d 188, 191 (Tex. Civ. deadline shortly before it expired. However, knowing the App.--Houston [1st Dist.] 1981, no writ). Crown’s second lease required the option to be delivered either personally or point of error is overruled. via certified mail, Crown waited until the day the option expired to tape the notice to Huddleston’s door. Then, E. Validity of the Judgment Crown never attempted to confirm delivery of the notice. In both Jones and Inn of the Hills, the lessees attempted to In its fifth point of error, Crown contends that the judgment remedy their mistakes as soon as they were discovered. See [**21] in this case is invalid because it does not describe the Jones, 130 S.W.2d at 273; Inn of the Hills, 723 S.W.2d at property at issue. The original summary judgment order, 300. entered October 17, 1996, provides that Huddleston shall If, in fact, it was a mistake for Crown to believe it would ″have restitution and possession of the described premises.″ find Huddleston at his office in order to personally deliver However, the judgment fails to describe the premises. On the notice to him in a timely manner, [**19] the mistake October 24, 1996, the trial court entered an order in would not be justified since Crown did not attempt to again response to Huddleston’s motion to clarify the original deliver the notice to Huddleston until twelve days later. judgment. The second order clarifies the first by stating that Under these circumstances, it is difficult to say that the trial ″the premises for which Huddleston was granted possession court abused its discretion in finding that Crown was not in the final judgment of October 17, 1996, is located at 8001 entitled to equitable relief. Broadway, San Antonio, Bexar County, Texas 78209.″
Further, Huddleston asserts the doctrine of unclean hands in Crown contends that the second order is not effective to opposition to Crown’s request for equity. Specifically, correct or clarify the first order because it fails to revoke and
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replace the first order. Thus, according to Crown, the second this case, there is only one judgment. Seven days after the order is a nullity and the first judgment controls in this case. judgment was entered, the trial court entered an order in Crown argues that because the first judgment fails to [*560] which it specifically referred to the judgment at issue and identify the property at issue, it is unenforceable and the then clarified the terms of that judgment. The order clarifying case should be reversed. HN11 While it is true that there can the judgment does not [**23] purport to supersede or vacate be only one final appealable judgment in any lawsuit, TEX. the judgment. It simply defines the judgment, leaving no R. CIV. P. 301, as long as the trial court has plenary power, question as to either the disposition of the case or to what a judgment is [**22] not technically final. Fruehauf Corp. v. property the judgment refers. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). HN12 The trial court has the power to correct, modify, vacate, or reform a We find that the trial court’s clarification order was a valid judgment during the thirty days that it retains plenary exercise of its plenary power over the judgment. Accordingly, jurisdiction over a case. TEX. R. CIV. P. 329b; Faulkner v. the first judgment, as clarified, became final and enforceable Culver, 851 S.W.2d 187, 188 (Tex. 1993). thirty days after the clarification order was entered. See Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988) (stating that Crown relies on Mullins v. Thomas, 136 Tex. 215, 150 if a judgment is modified, corrected, or reformed in any S.W.2d 83 (1941), for the proposition that the entry of a respect the appellate timetable begins to run as of the date second judgment in the same case is a nullity if there is of the correction). Crown’s fifth point of error is overruled. nothing to show that the first was vacated. 150 S.W.2d at 84. What Crown fails to recognize, however, is that Mullins and The judgment of the trial court is affirmed. its progeny deal with cases in which there are two purportedly final judgments. See, e.g., City of Westlake Hills KAREN ANGELINI v. State, 466 S.W.2d 722, 726-27 (Tex. 1971); Mullins, 150 S.W.2d at 84; Azbill v. Dallas Co. Child Protective Serv., JUSTICE 860 S.W.2d 133, 139 (Tex. App.--Dallas 1993, no writ). In
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