O'KEHIE v. Harris Leasing Co.

80 S.W.3d 316, 2002 WL 1447534
CourtCourt of Appeals of Texas
DecidedJuly 30, 2002
Docket06-01-00066-CV
StatusPublished
Cited by7 cases

This text of 80 S.W.3d 316 (O'KEHIE v. Harris Leasing Co.) 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.

Bluebook
O'KEHIE v. Harris Leasing Co., 80 S.W.3d 316, 2002 WL 1447534 (Tex. Ct. App. 2002).

Opinions

OPINION

Opinion by

Justice CORNELIUS

(Retired).

Hams Leasing Company (“Harris”) brought suit against Collins E. O’Kehie (“O’Kehie”) for breach of a lease contract by nonpayment. After a jury trial, the trial court rendered judgment on the verdict for Harris, awarding damages in the amount of $40,083.52 and attorney’s fees of $10,000.00. O’Kehie appeals, challenging the certification of trial exhibits by the trial court; challenging the lease contract as ambiguous as a matter of law; and contending the award of attorney’s fees is unsupported by the evidence. We affirm the judgment.

The first issue raised by O’Kehie concerns a controversy over trial exhibits. At trial, after announcing the jury’s verdict, the trial court stated, “Gentlemen, your respective motions to withdraw the exhibits and hold them for the appropriate appellant [sic] time period is hereby granted.” Court was then adjourned. Later, Tiffany Yeates, the court reporter who transcribed the testimony and received the evidence as it was admitted during trial, refused to certify the exhibits that were offered by the parties, apparently because the exhibits had not been immediately turned over to her or to the court clerk at the end of the trial. O’Kehie then filed a motion in this Court to reverse the trial court’s judgment and remand the case for a new trial on the basis that the record did not contain all the exhibits admitted into [318]*318evidence. We abated the case to the trial court to certify the exhibits admitted into evidence, and the trial court did so. O’Kehie objected at the certification hearing to the certification of these exhibits on the basis that he was unable to determine whether his exhibits and Harris’ exhibits were “properly sequenced” and whether they were the exact same exhibits introduced by the parties at trial. On appeal, O’Kehie brings a different complaint. He complains that three of Harris’ exhibits certified by the trial court were actually not introduced into evidence at trial. Because of this “enlargement of the record,” he argues, we must presume that these “unintroduced” exhibits were given to the jury for consideration during its deliberations and, therefore, the jury considered improper evidence.

We disagree. Assuming arguendo that the jury did in fact consider three improper exhibits, the proper time to have objected was before or at the time they were given to the jury. O’Kehie made no such objection. Thus, he has not preserved this complaint for review on appeal. Tex.R.App. P. 33.1. For the same reason, O’Kehie may not now complain that the record has been enlarged for appellate review by three improper exhibits, because he failed to bring this matter to the trial court’s attention. Moreover, the trial court in the certification hearing found that all of the exhibits had been introduced in evidence. O’Kehie’s first issue is overruled.

In his second and third issues, O’Kehie challenges jury answers on the ground they are not supported by “sufficient” or “proper evidence.” We construe these as legal sufficiency challenges. We must overrule legal sufficiency challenges if there is any competent evidence, more than a scintilla, supporting the jury’s findings. See ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426 (Tex.1997).

O’Kehie complains that the jury’s affirmative finding that a lease contract existed is unsupported by sufficient evidence because the contract is vague as a matter of law. A contract is ambiguous when its meaning is uncertain and doubtful, or it is reasonably susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Whether a contract is ambiguous is a question of law for the court to decide. Friendswood Dev. Co. v. McDade & Co., 926 SW.2d.280, 282 (Tex.1996); Nat’l Union Fire Ins. Co. v. CBI . Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). This determination is made by reviewing .the contract as a whole in light of the circumstances existing when the contract was executed. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d at 282; Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d at 520. If a contract is worded in such a manner that it can be given a definite or certain legal meaning, it is not ambiguous. Friendswood Dev. Co. v. McDade & Co., 926 S:W.2d at 282; Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d at 520.

The last page of the lease at issue is entitled “Lessee Page”’ and this title is centered on the page. Then, typewritten, the following appears on the page:

LESSEES:
Healthwatch Diagnostic Labs,' Inc.
Oliver A Onyewuenyi
Lilybell A Onyewuenyi
Ndukwe N Odeluga
Nneka D I Odeluga
Collins E O’Kehie
The above recognize that there is not adequate space on the original lease agreement to identify all six of the lessees. Therefore:
The undersigned are the Lessees and agree that this page shall be incorporat[319]*319ed in the attached lease agreement. The undersigned agree to all the terms and conditions set forth in the attached lease.
Dated: 09/04/96

Beneath this quoted portion of the lessee page are the signatures of Oliver A. Onye-wuenyi, Lilybell A. Onyewuenyi, Ndukwe N. Odeluga, Nneka D.I. Odeluga, and Collins E. O’Kehie. Lilybell A. Onyewuenyi signed twice, once on behalf of Health-watch Diagnostic Labs, Inc., and once in her individual capacity. Beneath each of these six signatures, each signatory’s name is typewritten. With the exception of the one signature of Lilybell A. Onyewuenyi on behalf of Healthwatch Diagnostic Labs, Inc., each typewritten name is followed by the word “Individual.” This includes O’Kehie’s signature. After this is a seventh signature beneath which, written in handwriting, appears, “Cheri D. Giller, Individual.” This is all that appears on the Lessee Page.

O’Kehie contends he signed as an attorney for the other parties, and as evidence of this, he notes that the lessee page refers to six lessees, while there are seven signatures. We find this contention unpersuasive. The fact that the lessee page refers to six lessees and a seventh lessee added herself by handwriting to the bottom of the document in no way makes ambiguous O’Kehie’s status as a signatory lessee. There is nothing on the lessee page indicating that O’Kehie was signing in a representative capacity. O’Kehie explicitly signed as an individual lessee, just as the others. The meaning of the lessee page is neither uncertain nor doubtful, nor is it reasonably susceptible to more than one meaning. We overrule O’Kehie’s second complaint.

Additionally, O’Kehie did not plead ambiguity. Generally, one seeking to establish ambiguity in a written contract must plead it. See Crozier v. Horne Children Maint. & Educ. Trust, 597 S.W.2d 418 (Tex.Civ.App.—San Antonio 1980, writ ref’d n.r.e.).

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O'KEHIE v. Harris Leasing Co.
80 S.W.3d 316 (Court of Appeals of Texas, 2002)

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Bluebook (online)
80 S.W.3d 316, 2002 WL 1447534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okehie-v-harris-leasing-co-texapp-2002.