Samuel, Robert C. and Samuel & Company, Inc. v. KTVU Partnership

• Court: Court of Appeals of Texas
• Decided: August 15, 2003
• Docket: 08-02-00010-CV
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERT C. SAMUEL and SAMUEL &              )

COMPANY, INC.,                                               )             No.  08-02-00010-CV

                                                                              )

Appellants,                         )                 Appeal from the

v.                                                                           )           County Court at Law #5

KTVU PARTNERSHIP,                                       )          of El Paso County, Texas

Appellee.                           )                  (TC# 97-3038)

MEMORANDUM   OPINION

This appeal arises out of several landlord‑tenant disputes concerning the rights and obligations of the parties under a twenty‑year building lease.  Appellants Robert C. Samuel and Samuel & Company, Inc. appeal from a final judgment rendered in favor of Appellee KTVU Partnership (AKTVU@) after a jury verdict, which also incorporated a partial summary judgment order and a directed verdict on insurance overcharge damages.

Appellants raise five issues, two of which contain sub‑issues, for review on appeal:  (1)(a) Should the jury have been asked to determine the intentions of the parties when the trial court failed to rule that any portion of the building lease was ambiguous and the pleadings fail to point out any ambiguity?; (1)(b) Is Appellant Mr. Samuel entitled to an injunction to have the offending dishes removed from the roof and to enjoin Appellee from installing any dishes beyond those allowed under the lease?; (2)(a) If the landlord breached the contract is tenant entitled to cost of a new roof as damages?; (2)(b) Did Appellee release any claims it had for the roof?; (3) Did the trial court err in granting partial summary judgment that the rent payable was calculable based on exactly 12,000 square feet?; (4) Did the trial court err in granting partial summary judgment in favor of Appellee on their entitlement to parking on the adjacent land?; and (5) Did the trial court err in awarding $7, 212 to Appellee for insurance overcharges?  We affirm.

BACKGROUND

On January 24, 1994, Appellant Robert C. Samuel and Station Manager Larry Pepin, on behalf of KCIK‑TV/FOX‑14, entered into a twenty‑year lease of a building located at 6004 North Mesa in El Paso for the purpose of operating a television station.  Under the terms of the lease, Mr. Samuel, the landlord, was required to maintain the roof, foundations, and structural portions of the building=s walls in good order, repair, and condition except for damage due to the acts or omissions by the tenant, KCIK‑TV/FOX‑14, its employees or invitees.  The lease provided that the tenant, after giving a request to the landlord, could make the repairs required of the landlord and deduct the costs from rent due or make emergency repairs as needed.  Under Section 28.15(O) entitled AAdditional Provisions,@ Mr. Samuel at his sole cost and expense was responsible for providing space in front of the building for the placement of the station=s Simulcast Receiver and providing space for two microwave dishes, six feet each, on the southern area of the roof.  Mr. Samuel was also responsible for installing a new roof prior to April 1, 1994, at his sole cost and expense.  In August 1996, the building lease was assigned to Appellee KTVU pursuant to an asset purchase agreement between KFOX‑TV (formerly KCIK), Cox Broadcasting, Inc., and KTVU.  KTVU continued to operate a television station at the premises. 

On September 10, 1997, KTVU filed suit against Mr. Samuel, alleging inter alia breach of the lease for failure to properly install a new roof or care for the existing roof.  KTVU also sought a declaratory judgment that under the lease it can install additional satellite dishes beyond the three mentioned in the AAdditional Provisions@ and sought an accounting of insurance payments and return of any insurance overcharges.  Appellants filed a counter-claim, alleging that KTVU breached the lease by installing antennas and satellite/microwave dishes on the roof in numbers not permitted under the lease.  In their counter-claim, Appellants sought a declaratory judgment that the lease restricts the tenant to two microwave dishes on the roof and that Appellants were entitled to indemnification pursuant to lease provisions.  Appellants also sought permanent injunctive relief for placement of any antennas, aerials, or dishes on the roof except for the two microwave dishes specified in the lease. 

On December 30, 1998, Appellants filed a motion for partial summary judgment and Appellee filed its response and a cross‑motion for summary judgment.  On August 9, 1999, the trial court granted partial summary judgment, inter alia determining the amount of rent payable under the lease and KTVU=s right to use the parking lot adjacent to the building.  The remaining issues of the case were submitted to the jury.  After a trial on the merits, the jury returned a verdict which found that Mr. Samuel had failed to comply with the lease provisions concerning the roof and insurance charges.  The jury also found that when Mr. Samuel and KCIK signed the building lease they both did not intend that the lessee could install only two microwave dishes on the southern area of the roof and one simulcast dish in front of the building.  Further, the jury found that KFOX leased the roof of 6004 North Mesa when it leased the building from Mr. Samuel.  The jury assessed damages at $50,000 for Mr. Samuel=s failure to comply with roof‑related provisions and measured attorney fees in the amount of $45,000.

After the jury returned its verdict, the trial court rendered a directed verdict on the amount of insurance overcharges and rendered a final judgment in favor of KTVU.  Appellants filed motions for judgment notwithstanding the verdict and for a new trial, which the trial court denied.  Appellants Mr. Samuel and Samuel & Company, Inc. now timely appeal. 

DISCUSSION

Jury Charge:  Submission of Question Nos. Four and Six

In Issue One, Appellants contend that the trial court erred in submitting jury question four  because the trial court never ruled that the lease was ambiguous and if it had, such ruling would have been erroneous.  Appellants also argue that submission of question four was error because Appellee=s written pleadings failed to point out any particular paragraph of the lease and spell out the meaning placed on that portion by Appellee or to assert that any provision of the lease is subject to two or more reasonable interpretations.

We review the trial court=s charge to the jury under the abuse of discretion standard.  See Tex.R.Civ.P. 277; Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (Opin. on reh=g).  The trial court may submit to the jury issues raised by the written pleadings and the evidence adduced at trial.  See Tex.R.Civ.P. 278; Green Int=l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997).  An error in a jury charge is reversible only if it probably caused the rendition of an improper judgment.  See Tex.R.App.P. 44.1(a)(1); Barham v. Turner Construction Co. of Texas, 803 S.W.2d 731, 735 (Tex.App.‑‑Dallas 1990, writ denied).

Question four asked the jury to determine Awhen Robert C. Samuel and KCIK signed the building lease, that they both intended that the lessee could install only two microwave dishes on the southern area of the roof and one simulsat dish in front of the building.@  The jury answered ANO@ to this question.  Appellants argue that the building lease is not ambiguous, thus Appellants are asserting that the question of party intent was a legal question that should not have been submitted to the jury.

The meaning of a contract should be submitted to the jury as a fact question only if the contract is ambiguous.  See Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983).  Whether a contract is ambiguous is a question of law for the court to decide.  National Union Fire Ins. Co. Of Pittsburg, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Coker, 650 S.W.2d at 394.  We review the trial court=s grant of summary judgment de novo as a question of law.  See Macias v. Rylander, 40 S.W.3d 679, 683 (Tex.App.‑‑Austin 2001, pet. denied).  The determination of whether a contract is ambiguous is made by looking at the contract as a whole in light of the circumstances present when the parties entered into the contract.  CBI Indus., Inc., 907 S.W.2d at 520; Coker, 650 S.W.2d at 394.  In an effort to harmonize and give effect to all the provisions of the contract, we examine and consider the entire writing so that none will be rendered meaningless.  CBI Indus., Inc., 907 S.W.2d at 520.  No single provision will control; rather, all the provisions must be considered with reference to the whole instrument.  Id.  The primary concern of a court when construing a written contract is to ascertain the true intent of the parties as expressed in the instrument.  Id.  If a contract is worded in such a way that it can be given a definite or certain legal meaning, then it is not ambiguous.  Id.; Coker, 650 S.W.2d at 393.  A contract will only become ambiguous if its meaning is uncertain or it is subject to two or more reasonable interpretations.  CBI Indus., Inc., 907 S.W.2d at 520; Towers of Texas, Inc. v. J & J Systems, Inc., 834 S.W.2d 1, 2 (Tex. 1992).

In the absence of an express finding of ambiguity, the trial court=s submission of a jury question on a contract gives rise to an inference that the trial court found the contract to be ambiguous because if it had not, it could only have interpreted the contract as a matter of law.  See Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 302 (Tex. 1993).  Moreover, a court may conclude that a contract is ambiguous even in the absence of such a pleading by either party.  See Sage Street Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).  If a contract is deemed ambiguous by the court, interpretation of the instrument becomes a fact issue for the jury.  Coker, 650 S.W.2d at 394.

With respect to submission of jury question four, Appellants argue that Section 28.15(O) of the lease agreement is not ambiguous because the number of microwave dishes permitted under the lease is specifically mentioned, thus restricting the installation of more than the allowed number.  Section 28.15(O) Additional Provisions provides:

Landlord shall at Landlord=s sole cost and expense:

1.         Enclose the stairwell and install an elevator to the 2nd floor before April 1, 1994.

2.         Provide a Tenant finish allowance not to exceed $60,000.00 subject to Landlord=s approval.

3.         Provide space in front of Premises for the placement of the Simulcast Receiver.  Provide space for two microwave dishes (6 ft. each) on  southern area of roof.

4.         New roof prior to April, 1994

Tenant shall at Tenant=s sole cost and expense:

1.         Said installation of the microwave and simulcast, as described in number 3 above, shall be at Tenant=s sole costs and expense.

2.         Tenant may install a new HVAC unit for the control room at Tenant=s sole cost and expense and shall assume the maintenance, repair, replacement, and servicing of the said unit.

In Appellee=s written pleadings it argued that the lease is ambiguous because it does not restrict the number of antennas or dishes in any provision, including Section 28.15(O).  Appellee interprets this provision to be a description of what equipment the tenant was going to install at that time, rather than a restriction.  Further, Appellee pled that Section 5.02 of the lease allows the tenant to remove satellite dishes and satellite receiving and transmitting links, thus clearly contemplating a multiple number of these items.  Since Section 28.15(O) does not reference a satellite dish, Appellee contends, additional satellite dishes must have been contemplated. 

Appellants= interpretation of the lease agreement with respect to the tenant=s right to install additional dishes is certainly reasonable, particularly given that the lease is silent as to installation of additional dishes by the tenant in the other lease provisions.  However, Appellee=s interpretation of the lease on this issue is not unreasonable.  In Section 5.02, the lease agreement stipulates the tenant=s rights and obligations as to all alterations, changes, additions, and improvements to the premises during and at the expiration of the lease term.  In pertinent part, Section 5.02 provides:

Any alterations, changes, additions and improvements shall immediately upon the termination of this lease become Landlord=s property, be considered part of the Premises, and not be removed at or prior to the end of the Lease Term without Landlord=s written consent unless Landlord requests Tenant to remove same, with the exception of all equipment, satellite dishes, lighting systems, associated with the operation of a television station including, but not limited to master control, production control, studio, satellite receiving and transmitter links.  [Emphasis added].

Appellee=s written pleadings sufficiently put Appellants on notice that they held differing interpretations of the lease with respect to the number of permissible dishes and Appellee=s interpretation is reasonable upon examination of the lease agreement as a whole.  Thus, we conclude that Section 28.15(O) is an ambiguous provision, which created a fact issue as to party intent for the jury to decide.  Accordingly, we overrule that portion of Appellants= Issue One which challenges the trial court=s submission of question four to the jury.

Within Issue One, Appellants argue that the trial court also erred in submitting jury question six because it was a legal question.  In Appellants= motion for new trial and at trial, they asserted that question six was a legal question to be determined from the interpretation of the lease by the court from the four corners of the document and not by the jury. 

Question six asked the jury to determine whether AKFOX leased the roof of 6004 N. Mesa when it leased the building from Mr. Samuel.@  The jury answered AYES@ to this question.  In Appellants= objection to question six prior to its submission to the jury, Appellants= counsel argued that the building lease clearly did not include lease of the roof any more than it included lease of the walls or the foundation of the building. 

On appeal, we understand Appellants to be challenging the trial court=s implicit determination that the lease was ambiguous with respect to whether Appellee=s lease of the building included lease of the building=s roof.  Section 1.02 of the lease provides:

Leased Premises:  Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the premise designated as 6004 N. Mesa Building or as outlined in red on Exhibit >A= (herein called >the Premises=), with a front width of approximately 103.2 feet and a depth of approximately sixty‑eight feet 8 inches measured to the exterior face of all walls, containing approximately 12,000 square feet. 

Exhibit A of the lease provides an outline of the ABank Building,@ along with its dimensional measurements and the roof elevation.  Section 3.01 of the lease provides in pertinent part:

Use of Premises:  The premises shall be occupied and used by Tenant solely for the purpose of conducting therein the business of a Television Station. 

In its pleadings, Appellee argued that under Section 3.01 of the lease its assignor KFOX, formerly KCIK, leased the entire building for use as a television station.  Appellee argued that in the alternative, the lease is ambiguous on this issue and should be construed that KCIK and then KFOX leased the roof of the building under the lease.  Appellee=s interpretation of the lease is as reasonable as Appellants= interpretation, given that Section 1.02 and Exhibit A can be construed to refer to the entire building, which would presumably include its roof for purposes of operating a television station--the only use permissible under the lease terms.  We conclude that the lease in this regard is ambiguous, raising a fact issue for the jury.  Therefore, the trial court did not abuse its discretion in submitting this issue to the jury based on Appellee=s pleadings and the evidence presented at trial.  See Tex.R.Civ.P. 278.  We overrule that portion of Issue One that challenges the submission of question six to the jury.

Sufficiency of the Evidence to Support Jury Findings to Question Nos. Four and Six

Within Issue One, Appellants challenge the factual sufficiency of the evidence to support the jury=s finding that when Appellant Mr. Samuel and KCIK signed the building lease, they both did not intend that the lessee could install only two microwave dishes on the southern area of the roof and one simulcast dish in the front of the building.  Appellants also challenge the legal and factual sufficiency of the evidence to support the jury=s affirmative answer to question six: whether the tenant leased the roof of 6004 North Mesa when it leased the building from Mr. Samuel.

In reviewing the legal sufficiency of the evidence, we consider only the evidence that tends to support the jury=s finding and disregard all contrary evidence and inferences.  Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 538 (Tex.App.‑‑El Paso 2001, no pet.).  If there is more than a scintilla of evidence to support the jury=s finding, the legal insufficiency challenge fails.  Z.A.O., Inc., 50 S.W.3d at 538.

Our review of the factual sufficiency of the evidence of a jury=s finding requires that we consider all of the evidence to determine whether the questioned finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.  In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.‑‑El Paso 1992, writ denied).  However, we may not substitute our conclusions for those of the jury.  Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).  If there is sufficient probative evidence to support the finding, it must be sustained.  Oechsner, 840 S.W.2d at 136.  Further, the jury, as trier of fact, is the sole judge of the witnesses= credibility and the weight given to their testimony.  Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.--Houston [1st Dist.] 1991, writ denied).  It is not the province of the reviewing court to interfere with the jury=s resolution of conflicting evidence and the jury=s verdict on such matters is generally regarded as conclusive.  Oeschner, 840 S.W.2d at 136; Chandler v. Chandler, 842 S.W.2d 829, 833 (Tex.App.‑‑El Paso 1992, writ denied).

Jury Finding on the Parties= Intent

At trial, Mr. Larry Pepin, former station manager of Appellee=s assignor, KCIK (later KFOX) testified that the station approached Mr. Samuel about leasing his bank building at 6004 North Mesa around November or December of 1993.  During negotiations KCIK, a television station, knew that it would have to renovate the facility because the building had been vacant for a couple of years and had been previously used as a bank.  At their current location on Stanton Street, KCIK was operating with three stationary dishes, approximately 13 to 15 feet across, a couple of small mesh dishes, approximately six to seven feet in diameter, and three microwaves, two that pointed to their transmitter tower and one that the station used as a backup in the event their transmitter went off the air.  Mr. Pepin stated that at that time what they really needed were three dishes, a large dish to receive their syndication programs and two microwave dishes to communicate with their transmitter and the cable headant, so that the cable company could pick up their signal in the event that they went off the air.

According to Mr. Pepin=s recollection, Mr. Samuel initially objected to all of the dishes.  Mr. Pepin stated that in their meeting with Mr. Samuel, they told Mr. Samuel that satellite dishes are a necessity for a television station.  They also told him that they absolutely had to have a big dish in front to receive syndicated product.  Mr. Pepin had the impression that Mr. Samuel was concerned that his property would become a dish farm.  However, Mr. Pepin recalled telling Mr. Samuel that technology in this business is constantly changing and that dishes are getting much smaller.  Mr. Pepin stated that he told Mr. Samuel, A>The technology is just moving very rapidly in the business.  Unfortunately satellite dishes are part of the business.=@  From KCIK=s perspective, they could not have been able to operate without the satellite dishes.  If the lease had restricted future placement of dishes on the building there was no way they would have signed it. 

Mr. Pepin recalled that Mr. Samuel was the one who insisted on a twenty-year lease, while KCIK had initially offered four or five-year successive terms.  Mr. Pepin also testified that it was his understanding that under the lease, the station had the right to install additional dishes if they needed them and to take the equipment with them when they left the premises.  On cross-examination, Mr. Pepin testified that references to the simulcast receiver and two microwave dishes in Section 28.15(O) of the lease were to what the station needed when he signed the lease for KCIK.  Mr. Pepin conceded that it was not specifically written that the station could add additional dishes onto the roof.  However, on redirect, Mr. Pepin testified that Section 28.15(O) in his opinion does not restrict additional dishes.

Appellee also introduced the testimony of Mr. Donald Caparis, the former general manager of KCIK, and later KFOX when the station changed its call letters.  Mr. Caparis testified that the issue of satellite dishes came up during lease negotiations.  Mr. Caparis stated that it was discussed only insofar as what the station needed at that time.  Mr. Caparis did not recall Mr. Samuel objecting to the presence of satellite dishes.  Mr. Caparis testified that they would not have signed a lease that would limit their future expansion concerning dish needs.  According to Mr. Caparis, they knew they would need more dishes down the line.  The particular lease provision describing the two microwave dishes and a simulcast receiver was put into the lease because, as Mr. Caparis recalled, that was what they needed at the time. 

By deposition, Appellant Mr. Samuel testified that he knew a television station was going to be occupying the premises during the negotiations leading up to execution of the lease.  Mr. Samuel also stated that he allowed assignment of the lease from KCIK, then known as KFOX-TV, to KTVU.  Mr. Samuel recalled that he did not want the dishes, but reluctantly agreed to them in the original lease.  Mr. Samuel stated that the parties had quite a bit of discussion regarding the approval of three dishes.  However, Mr. Samuel did not know from their negotiations that if he did not provide the station with space for dishes, they were not going to lease from him. 

Mr. Kevin Reed, an attorney specializing in communications law in Washington, D.C. was involved in negotiations to obtain Mr. Samuel=s consent to assignment of the lease to KTVU in 1996.  Mr. Reed testified by deposition that his client thought the lease was clear enough, but they wanted to add a provision in the First Amendment to the Lease concerning KTVU=s ability to install additional equipment on the roof for transmission and reception of satellite transmissions.  Mr. Reed recalled that his client was clearly dissatisfied with the current lease and given the difficult relationship that was starting to arise, they wanted to Anail down@ what rights KTVU had under the lease.  Specifically, Mr. Reed stated, AWe didn=t want any ambiguity at all.  We thought the lease was clear enough as to the fact that we could make modifications to the exterior by putting satellite dishes up there, but we didn=t want any ambiguity creeping into the relationship, because it had not gotten off to a good start.@ 

After reviewing all the evidence in the record under the factual sufficiency standard of review, we cannot conclude that the jury=s determination as to the parties= intent  is against the great weight and preponderance of the evidence.  We overrule that portion of Appellant=s Issue One which challenges the factual sufficiency of the evidence to support the jury=s finding to question four.

Jury Finding on Lease of the Roof

At trial, Mr. Pepin testified that during negotiations over the lease, Mr. Samuel insisted that KCIK lease the entire building, even though the station at that time did not need 12,000 square feet.  Mr. Pepin recalled that Mr. Samuel told him that he wanted to deal with just one tenant.  With respect to dishes on the roof, Mr. Pepin testified that most of the dishes are mounted to the wall and that there are two that are resting on the roof, either on a felt pad or rubberized mat and secured by cinder blocks.  According to Mr. Pepin, when he entered into the agreement with Mr. Samuel, he intended to lease the roof of the building at 6004 North Mesa.  At trial, Mr. Andrew Cohn, Mr. Samuel=s right-hand-man, testified that in his 1997 correspondence to Appellee he had indicated to them that they had no right to access the roof of the premises without the landlord=s consent.  John Folmer, a real estate agent involved in the lease negotiations testified that Mr. Caparis and Mr. Pepin indicated that they did not need to lease the entire building when they lease 6004 North Mesa, but did so. 

The evidence discussed above is legally sufficient to support the jury=s determination that the lease included the roof.  With regard to Appellants= factual sufficiency challenge, we cannot conclude that the jury=s determination that the lease included the lease of the roof is against the great weight and preponderance of the evidence.  We overrule that portion of Appellants= Issue One which challenges the sufficiency of the evidence to support the jury=s finding to question six.

Injunctive Relief

Within Issue One, Appellants argue that the trial court should have granted their request for an injunction to forbid Appellee from installing additional roof antennas and satellite dishes in violation of Section 28.15(O) of the lease.  Appellants also argue that this Court should grant injunctive relief, by which we understand Appellants to be asserting on appeal that they established their entitlement to such relief as a matter of law. 

We review the granting or denial of a permanent injunction for an abuse of discretion.   Jim Rutherford Investments, Inc. v. Terramar Beach Cmty. Ass=n, 25 S.W.3d 845, 848 (Tex.App.‑‑Houston [14th Dist.] 2000, pet. denied).  A party requesting injunctive relief must show: the existence of a wrongful act; the existence of imminent harm; the existence of irreparable injury; and the absence of an adequate remedy at law.  Id. at 849.

Appellants rely on Bales v. Jones, 288 S.W.2d 266 (Tex.Civ.App.‑‑Fort Worth 1956, writ ref'd n.r.e.) in arguing that when a tenant admits to a violation of the lease, the landlord has established its right to an injunction.  In Bales, the landlord brought suit to permanently enjoin his tenant from violating a lease provision which prohibited stocking, displaying, and selling of merchandise not customarily carried in an auto accessories store.  Bales, 288 S.W.2d at 267.  In that case, the court held that the trial court was entitled to grant the relief requested because the tenant himself admitted every element requisite to establishing the landlord=s right to the injunction.  Id. at 268.  The court found that under the circumstances, the landlord was not required to show anything other than the tenant=s breach of his negative lease obligations.  Id.  We find the present case distinguishable. 

Here, Appellants point out that at trial Appellee=s witness, Mr. Larry Pepin, testified that he observed seven dishes on the roof and conceded that seven is more than two.  However, as we have discussed above, there was a fact issue for the jury as to whether the lease restricted the number of dishes on the roof to the two dishes to be installed at the landlord=s sole cost and expense and the jury determined that there was no such restriction.  If even Mr. Pepin=s testimony could be characterized as an Aadmission@ by Appellee, Appellants fail to establish as a matter of law that Appellee=s placement of additional dishes constituted a violation of Section 28.15(O) nor do they address the remaining requisite elements for injunctive relief.  We overrule that portion of Appellants= Issue One which concerns its claim for injunctive relief. 

Having reviewed all of Appellants= sub‑issues within Issue One, we overrule Issue One in its entirety.

Sufficiency of the Evidence to Support the Jury=s Findings to Question No. 1

In Issue Two, Appellants assert that if the jury=s finding to question one is based on the assertion that a new roof was not installed at the premises, then it is against the great weight and preponderance of the evidence.  Question one asked the jury to determine whether AMr. Samuel failed to comply with the lease provisions concerning the roof.@  The jury answered AYES@ to this question.  Appellants argue that the evidence clearly showed that a new roof was installed on or about April 1994, contrary to the jury=s finding if it was based on Appellant Mr. Samuel=s failure to comply with Section 28.15(O). 

As Appellants rightly point out in their brief, the lease contains two provisions which specifically address the building=s roof.  Section 28.15(O) provides that the landlord at his sole cost and expense shall provide a new roof prior to April 1, 1994.  Section 4.01 provides in pertinent part:

Maintenance by Landlord:  Landlord shall keep or cause to be kept the roof, foundations and structural portions of the walls of the Premises in good order, repair and condition except for damage thereto due to the acts or omissions of Tenant=s, its employees or invites [sic].

Evidently, question one was broadly worded to address the controlling issues as to the landlord=s obligations to replace the existing roof of the building and to provide for its continued maintenance.

At trial, Mr. Pepin testified that in his opinion, the landlord had failed to keep the building=s roof in good shape.  Mr. Pepin also stated that the landlord had failed to install a new roof prior to April of 1994.  According to Mr. Pepin, it was the station=s understanding that a brand new roof was going to be installed on the building.  In July 1994, Mr. Pepin went up to the roof to look at what work had been done.  KCIK had been told that a new roof would be installed, but to Mr. Pepin it did not look like the roofers were installing a new roof.  Mr. Pepin recalled that it looked like it was kind of a patch job.  When he walked around, he saw large gaps in some of the flashing that was up against the wall and knew that if it rained directly down on that area, water would eventually seep down underneath the roof material.  To his knowledge, nothing was done about this.  Mr. Pepin testified that between 1994 and 1996 the station was constantly having roof problems.  Mr. Pepin recalled that there were roof leaks all the time during 1997.  In Mr. Pepin=s opinion, the roof looked in substantially the same condition at the time of trial as it did in photographs of it taken in 1998.  On cross-examination, Mr. Pepin conceded that he was not aware of every time that a roofer went up on the roof to do regular maintenance. 

Mr. Caparis offered testimony as to the condition of the roof during his time at the station.  He recalled that they had periodic problems with the roof leaking, which continued until he left in 1996.  Mr. Caparis stated that leaks were over their cameras and other equipment, which concerned their chief engineer.  Mr. Caparis also testified that no new roof was installed in 1994.  Rather, some patchwork was done to the roof.  In his opinion, the landlord did not keep the roof in good order, repair, and condition. 

By deposition, Appellee offered the testimony of Brian Watson, a commercial roofer who has been in the roofing industry in El Paso for six years.  Mr. Watson recalled that his company, Commercial Roofing Systems, did a roofing bid for the building located at 6004 North Mesa.  In their 1993 site inspection, they determined that the roof needed to be re-roofed as it was old and in pretty bad shape.  It had multiple leaks into the building at that time.  In 1997, Mr. Watson looked at the roof again and in his opinion thought it needed to be replaced because there were major problems with it.  Mr. Watson testified that the workmanship was terrible and that the roof was going to leak again.  In their 1997 bid, they estimated it would cost $43,106 to replace the roof.  A couple of weeks before giving his deposition testimony in 1998, Mr. Watson revisited the roof of the 6004 North Mesa building and observed ponding water on the roof, some flashing problems, and thought it still needed replacement.  In his opinion, it was not a good roof. 

By deposition, Appellant Mr. Samuel testified that he believed the roof was replaced before April of 1994.  Mr. Samuel did not recall receiving any letters regarding the roof or problems with the roof.  Mr. Samuel recalled that he went to the property and went up to the roof and found a hole that the tenant had put in the roof that they fixed.  He did not see any other problems and did not think the flashing was improperly installed.  Mr. Samuel conceded that he had read a letter dated March 6, 1997 from KFOX, requesting that the roof be repaired.  He believed that any time there has been a leak, regardless of the cause, he has had the roof repaired.

Appellee called Ms. Noreen Jaramillo to testify as to her recollection of the roof leaks at the building.  Ms. Jaramillo is a news anchor at the KFOX-TV station.  She stated that she noticed stains on their carpet on the second floor from where water had leaked onto it.  Ms. Jaramillo also stated that there were often buckets sitting on the building=s staircase to catch water leaking through the roof.  Over the four years she has worked at the station, Ms. Jaramillo noticed the buckets and the roof leaking on a number of occasions. 

Bruce Wickes, a maintenance employee for Mr. Samuel, testified that he started working for Mr. Samuel in 1996.  Mr. Wickes conceded that there had been ponding water up on the roof of the 6004 North Mesa building, but when he looked at the roof in 1996 all the drains were functioning.  In a report prepared upon Mr. Samuel=s request, Mr. Wickes noted that along the edge of the roof there was accumulated water from rainfall, seams were open on both sides of the roof, and there were minor tears and openings at the lower portion of the roof.  In the report, Mr. Wickes recommended recoating the entire roof with a premium aluminized fibered roof paint after all repairs have been completed.  Mr. Wickes performed various repairs to the roof, including repair of insulation, resealing all seams and joints, and resealing the skylight.  Mr. Wickes testified that he did not think it was a lousy roof and felt that it could last up to ten years, if properly maintained.  He did not think the roof needed to be replaced at this time. 

We find that there is some evidence to support the jury=s finding that Appellant, Mr. Samuel, failed to comply with Section 4.01 of the building lease.  Further, the evidence was factually sufficient to support the jury=s finding that the landlord had failed to comply with Section 28.15(O).  We overrule that portion of Appellant=s Issue Two which challenges the sufficiency of the evidence to support the jury=s finding to question one. 

Jury Charge:  Submission of Question No. 2

Within Issue Two, Appellants challenge the submission of jury question two, arguing that the question should not have been submitted because:  (1) the pleadings do not support its submission to the jury; (2) Appellee=s pleadings mention nothing about the cost of a new roof being an element of its damages^[1]; and (3) the question was not based on the proper measure of damages.

Question two asked the jury to determine A[w]hat sum of money, if any, if paid now in cash, would fairly and reasonably compensate KFOX for its damages, it any, that resulted from Mr. Samuel=s failure to comply?@  The jury was instructed to consider the following elements of damages, if any, and none other: the cost of roof repair or a new roof.  Further, they were instructed to answer in dollars and cents for damages, if any, that Appellee sustained in the past or will reasonably be sustained in the future.  The jury assessed Appellee=s damages in the amount of $50,000.

Prior to the court=s charge of the jury, Appellants= counsel objected to question two, arguing that it was the wrong measure of damages for a tenant.  Appellants= counsel asserted that the proper measure of damage would be whatever interior and equipment damages the tenant suffered, but counsel did not request submission of this measure of damages to the jury.  Appellants= counsel also argued that the pleadings did not support the submission of any damage issue, much less this one.

As discussed above, we review the trial court=s charge to the jury under the abuse of discretion standard.  See Tex.R.Civ.P. 277; Texas Dept. of Human Services, 802 S.W.2d at 649.  The trial court may submit to the jury issues raised by the written pleadings and the evidence adduced at trial.  See Tex.R.Civ.P. 278; Green Int=l, Inc., 951 S.W.2d at 391.

In its pleadings, Appellee alleged the following with regard to its roof‑related damages:

For the past seven years, Mr. Samuel has failed to properly install a new roof or case for the existing roof as required by the Lease.  Despite letters, telephone calls, and personal discussions with Mr. Samuel and his agents, Mr. Samuel has failed to take any adequate step to comply with the Lease concerning the roof.  Mr. Samuel has occasionally patched the roof in a band‑aid type approach.  As a direct and proximate result of the repeated roof leaks, KFOX^[2] suffered damage to its interior ceilings, carpet, and an impairment of the value of its tenancy.  Additionally, KFOX is concerned with its ability to protect the interior of the Building including its equipment and furnishings from the roof leaks.  The failure by Mr. Samuel to properly replace or maintain the roof constitutes a breach of the Lease and KFOX is entitled to monetary damages and attorneys= fees in excess of the minimum jurisdictional limits of the Court as a result of his breach.

Appellee=s pleading provided sufficient notice to Appellants that it sought monetary damages based on the cost of preventing repeated roof leaks by repair or replacement of the roof.  See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993)(petition is sufficient if a cause of action or defense may be reasonably inferred from what is specifically stated).

At trial, Mr. John Acuña testified to the cost of roof repair for the leased premises. Mr. Acuña has been in the roofing business for approximately twenty-one to twenty-two years.  In 1996, he received a call from Mr. Pepin to come out and take a look at the building=s roof.  Mr. Pepin asked Mr. Acuña to make a report on the roof, and after that, Mr. Acuña=s company repaired some of the immediate leaks.  In their report, they noted that they had observed blistering, splits, and areas of depression which were creating ponding problems.  At that time, they estimated that the roof needed $12,000 to $15,000 worth of repairs.  His company did not do this work.  If a new roof had been put on the building in April 1994, in his opinion these conditions would not have existed.  Mr. Acuña considered a bid for $43,106 for roof repair given in June 1997 to be a reasonable bid for El Paso County.  He also agreed that adding an additional ten percent to bring it to a 2001 estimate was reasonable.  This would amount to approximately $47,000.  Further, Mr. Acuña estimated that the reasonable range in El Paso County to properly replace the roof of the building was between $45,000 to $60,000, depending on insulation. 

The jury was instructed in question two to consider damages, if any, based on either the cost of roof repair or a new roof.  The instructions permitted the jury to make its determination as to Appellee=s damages based on the cost of roof repairs alone or for its replacement.  The pleadings support submission of the damages question to the jury.  Further, there was some evidence adduced at trial to support submission of jury question two as to Appellee=s damages, if any, as a result of Mr. Samuel=s failure to comply with the lease.  If there is any evidence of probative value to support an issue, the trial court may not refuse to submit the issue to the jury.  See K‑Mart Corp. v. Pearson, 818 S.W.2d 410, 413 (Tex.App.‑-Houston [1st Dist.] 1991, no writ).  Accordingly, we overrule that portion of Appellant=s Issue Two which challenges submission of jury question two on grounds that it was not supported by the pleadings and evidence at trial.  See Tex.R.Civ.P. 278.

Measure of Damages

Within Issue Two, Appellants also argue that the correct measure of damages in question two should have been the damage actually done to Appellee=s property, for example, to its computer monitor and ceiling tiles, rather than the cost of roof repairs or roof replacement. 

The primary objective in awarding damages in civil cases has been to compensate the injured plaintiff, not to punish the defendant.  Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex. 1985).  As a general rule, damage to personal property is measured by the difference in the reasonable market value immediately before and immediately after injury to the property.  Central Freight Lines, Inc. v. Naztec, Inc., 790 S.W.2d 733, 734 (Tex.App.--El Paso 1990, no writ).  However, different factual situations may require the application of a different measure of damages.  Id. 

Appellant, Mr. Samuel, entered into a twenty-year lease with Appellee=s assignor for the sole purpose of operating a television station.  Under the terms of the building lease, Mr. Samuel had an obligation to install a new roof prior to April 1, 1994, and under Section 4.01, Mr. Samuel had a duty to maintain the building=s roof in Agood order, repair and condition.@  Under Section 4.01, the tenant also has the right to make repairs to the roof as required by the landlord and deduct these costs from the next rental payment.  The jury determined that Appellee=s lease of the building included lease of its roof.  At trial, Mr. Pepin, the former station manager of KCIK, testified that it had been their understanding that as part of their lease, the landlord was to install a brand new roof on the building.  Mr. Pepin stated that the station did not do any roof repairs, even though the lease permitted the tenant to do repairs, because they thought it was the landlord=s responsibility and they knew Mr. Samuel would not pay for their costs. 

In this case, Appellee=s lease entitled the tenant to a new roof and continued maintenance of that roof for the length of the lease term.  In effect, Appellee held a property right in its lease of a new roof.  Under these circumstances, the cost of reasonable repairs to the roof was an appropriate measure of damages.  See Central Freight Lines, Inc., 790 S.W.2d at 734-35 (AWhere the injury to the property has not resulted in its total loss and the repair of the damaged property is economically feasible, the plaintiff may elect to recover the reasonable cost of repairs.@).  An award of damages for breach of contract should place the injured party as near as possible in the position that he would have occupied had the defaulting party performed the contract.  Thomas C. Cook, Inc. v. Rowhanian, 774 S.W.2d 679, 686 (Tex.App.--El Paso 1989, writ denied).  Moreover, at trial, Appellants= counsel refused to submit an alternative measure of damages to the jury.  We cannot conclude that the trial court abused its discretion in submitting jury question two to the jury and therefore, overrule Appellants= Issue Two in its entirety^[3].

Partial Summary Judgment

In Issues Three and Four, Appellants challenge the trial court=s partial summary judgment order regarding the amount of rent payable under the building lease and the trial court=s finding that Appellee has the right to park on the adjacent land that is designated a parking lot.  

We review the trial court=s summary judgment de novo.  See Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex.App.‑‑San Antonio 1995, writ denied).  Summary judgment is proper if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548‑49 (Tex. 1985).  The standards for reviewing a summary judgment are well established:  (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non‑movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non‑movant with any doubts resolved in its favor.  Nixon, 690 S.W.2d at 548‑49.

Amount of Rent Payable

Provisions in the lease for the amount of rent payable are stipulated in Section 2.04 as follows:

BASIC RENTAL:

A. Minimum Monthly Rental:

(1) Tenant shall pay to the Landlord as Minimum Monthly Rental for the Premises, the sum of Five Thousand One Hundred Fifty Dollars and No Cents ($5,150.00) per month, beginning May 1, 1994, which sum shall be subject to possible upward adjustment as provided in Paragraph (2) below. Said Minimum Monthly Rental shall be paid in advance on the first day of each month of the term, with proration to occur for any partial month, if the Commencement Date is other than the first day of a calendar month.  All rentals to be paid by Tenant to Landlord shall be in lawful money of the United States of America and shall be paid without deduction or offset, prior notice or demand, on or before the first (1st) day of each and every month during the term hereof, and at such place or places as may be designated from time to time by Landlord.

(2) RENTAL ADJUSTMENTS, MULTIPLIED TIMES THE SQUARE FEET (see 1.02 above) DURING PRIMARY TERM BEGINNING:

January 1, 1999:           $5.41 p.s.f.

January 1, 2004:           $5.67 p.s.f.

January 1, 2009:           $5.93 p.s.f.

Section 1.02 of the lease, referenced in Section 2.04, pertains to the description of the leased premises.  Section 1.02 provides:

Leased Premises:  Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the premise designated as 6004 N. Mesa Building or as outlined in red on Exhibit AA@ (herein called Athe Premises@), with a front width of approximately 103.2 feet and a depth of approximately sixty‑eight feet 8 inches measured to the exterior face of all walls, containing approximately 12,000 square feet. 

The figures A103.2 feet@ and Asixty‑eight feet 8 inches@ were handwritten into blank lines for recording the front width and depth measurements of the leased premises. 

In Appellee=s supplemental cross‑motion for summary judgment, it argued that the current monthly rent under the contract was $5,410.  Appellee asserted that for the past four years, it had paid rent to Mr. Samuel based upon the figure of $5.15 times 12,000 square feet.  Appellee argued that the plain language of the lease indicates that the monthly rental payment is $5,410 per month, and sought a declaration that as a matter of law, this is the proper amount of rent.

On appeal, Appellants contend the trial court erred in granting partial summary judgment that the rent payable was calculable based on exactly 12,000 square feet.  Specifically, they argue that the trial court erred in determining that the monthly rent was based on the typed words in the lease, A12,000 square feet,@ rather than on the handwritten measurements, A103.2 feet@ and Asixty‑eight feet 8 inches.@  Appellants rely on Montgomery Ward & Co., Inc. v. Dalton, 665 S.W.2d 507, 512 (Tex.App.‑‑El Paso 1983, no writ), to support their argument that where there is a conflict between the written and printed words in a contract, the written words control.  In Montgomery Ward & Co., Inc. v. Dalton, homeowners had entered into a written contract with Montgomery Ward & Company to install roofing on their home.   Montgomery Ward & Co., Inc., 665 S.W.2d at 510.  On the front page of the contract there was a handwritten description of the materials to be used, the work to be performed, and various long‑term guarantees of the labor and materials.  Id.  On the back of the instrument, the printed contract terms contained only a limited warranty for installation.  Id. at 510, 512.  The present case is distinguishable in that there is no such conflict on the face of the building lease.

Here, Section 2.04(A)(2) clearly states that the rental adjustment required is calculated by multiplying the square feet figure given in Section 1.02 to pay increases commencing at regular five‑year intervals.  The handwritten figures are not given in square feet.  Moreover, they refer only to the front width and depth of the building Ameasured to the exterior face of all walls . . . .@  Given the definite meaning of Section 2.04=s requisite increase based on multiplication of $5.41, $5.67, and $5.93, Ap.s.f@ that is, per square feet, we cannot find that the parties intended otherwise.  Accordingly, we overrule Issue Three.

Adjacent Parking

In Issue Four, Appellants contend that the trial court erred in determining that Appellee was entitled to park on adjacent land owned by Appellant Samuel and Company, not Appellant Mr. Samuel.  Appellants argue that since Exhibit A=s outline of the premises did not include parking areas, no such parking was provided in Appellee=s lease of the building.  In response, Appellees argue that as a matter of law in Texas, the lease of an entire building includes use of the lessor=s adjacent land which is used with the building as necessary to its proper occupation for the purpose for which it was intended.  In its motion for partial summary judgment, Appellee also argued that under Section 20.64.170 of the City of El Paso=s zoning ordinance, a landlord must provide at least one parking space for each 200 square feet of floor area in a building. 

As a general rule, the lease of an entire building is a lease of the ground under it, as well as adjacent land of the lessor, which is used with the building as necessary to its proper occupation for the purpose for which it was intended.  Bifano v. Econo Builders, Inc., 401 S.W.2d 670, 674 (Tex.Civ.App.‑‑Dallas 1966, writ ref@d n.r.e.).  In the present case, Appellant, Mr. Samuel, apparently leases the adjacent parking lot from Appellant Samuel and Company, Inc. and is the sole shareholder of that entity.^[4]  Section 3.04 of the lease suggests to this Court that some degree of access to non‑delivery parking was intended by the parties when they entered into the lease agreement.  Under this section, the tenant covenants and agrees that it will inter alia Anot permit the loading or unloading or the parking or standing of delivery vehicles outside any area designated therefor . . . .@  Given that Appellee leased the entire building with the parties with the intention that the tenant would operate a television station at the location and the strong inference that parking access was intended pursuant to Section 3.04, we cannot conclude the trial court erred in finding that Appellee had the right to park on adjacent land leased by Appellant Mr. Samuel as a designated parking lot.^[5]  Issue Four is overruled.

Jury Charge:  Submission of a Jury Question on Insurance Overcharges

In Appellants= Issue Five, they contend the trial court erred in awarding $7,212 to the Appellee for insurance overcharges.  Specifically, Appellants argue that the trial court erred in failing to submit a damage issue to the jury on the amount of the alleged overcharge along with jury question seven.^[6]  A review of the record shows that Appellants= counsel initially requested jury question seven and Appellee, not Appellants, raised the objection that there should be a damage question linked to it and the trial court overruled that objection.  Prior to the court=s charge of the jury, Appellants objected to their question on the grounds that there was no evidence of any damage suffered and no evidence of any overcharge.  We find that Appellants= argument on appeal in this regard does not comport with its objections raised at trial.  Thus, Appellants have not preserved this issue for our review.  See Tex.R.App.P. 33.1.  Issue Five is overruled.

For the reasons stated above, we affirm the trial court=s judgment.

August 15, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

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^[1] A review of the record shows that Appellants did not specifically raise an objection to the trial court that the pleadings were inadequate for failure to mention the cost of a new roof.  Therefore, we do not consider that aspect of Appellants= contentions on appeal.  See Tex.R.App.P. 33.1(a); Tex.R.Civ.P. 274.

^[2] In its original pleadings in the trial court, Appellee KTVU Partnership referred to itself as AKFOX.@

^[3] Within Issue Two, Appellants also contended that the trial court should have found as a matter of law that Appellee=s assignor in a letter dated November 17, 1995 released all prior claims against Appellant Mr. Samuel, including those related to the roof.  The trial court evidently refused Appellant=s requested jury question on this issue.  On appeal, Appellants do not challenge the trial court=s ruling.  Appellants= motion for judgment notwithstanding the verdict does not contain its argument that the trial court should have found that as a matter of law it established the affirmative defense of release.  Further, Appellants= pleadings do not appear to assert its release claim.  Release is an affirmative defense for which Appellants had the burden to plead and produce evidence in support of the claim.  See Tex.R.Civ.P. 94.  We do not consider Appellants= release claim, finding that the issue was not preserved for appeal.  See Tex.R.App.P. 33.1(a). 

^[4] In summary judgment evidence submitted in support of Appellee=s cross-motion for summary judgment, Mr. Samuel in deposition testimony stated that he was the sole shareholder of Appellant Samuel and Company, Inc.  Samuel and Company owns the parking lot adjacent to the KFOX building at issue.  Samuel and Company leases the parking lot to Mr. Samuel through an oral lease.  Mr. Samuel pays rent to Samuel and Company for the lease.  Samuel and Company leases the parking lot to no one else other than Mr. Samuel.  Mr. Samuel admitted that in 1995 and 1996, KCIK paid to Mr. Samuel a portion of the real estate taxes for the parking lot. 

^[5] We also note that in his deposition testimony, Mr. Samuel testified that the tenant pays $500 a month for common area maintenance, but he did not recall the breakdown of this fee.

^[6] Jury question seven asked the jury to determine whether AMr. Samuel failed to comply with the lease provisions concerning his charges to lessee for insurance.@  The jury answered AYES@ to this question.