Bifano v. Econo Builders, Inc.

• Decision Date: 28 January 1966
• Docket Number: No. 16634,16634
• Citation: 401 S.W.2d 670
• Parties: S. J. BIFANO et ux., Appellants, v. ECONO BUILDERS, INC., et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 670

401 S.W.2d 670

S. J. BIFANO et ux., Appellants, v. ECONO BUILDERS, INC., et al., Appellees.

No. 16634.

Court of Civil Appeals of Texas Dallas.

Jan. 28, 1966.

Rehearing Denied March 4, 1966.

Strasburger, Price, Kelton, Miller & Martin, Robert H. Thomas, Dallas, for appellants.

William A. McKenzie, Dallas, for appellees.

BATEMAN, Justice.

The appellants S. J. Bifano and wife sued Econo Builders, Inc., H. Leslie Hill and Gardens Development Company for actual and exemplary damages because of the alleged breach of a lease of certain business property in the City of Dallas. The trial court instructed a verdict in favor of Econo Builders, Inc. and H. Leslie Hill and submitted the case to the jury on special issues as to the defendant Gardens Development Company. The court rendered judgment in favor of Gardens Development Company on the verdict, decreeing that appellants take nothing as to any of the defendants. Appellants present thirty-three points of error on appeal.

Facts

The appellee Hill owned several acres of land abutting Northwest Highway near its intersection with Lemmon Avenue in the City of Dallas, and began the development of a suburban shopping center to be known as Walnut Hill Shopping Center. The portion of the property adjacent to Northwest Highway was divided into three tracts lettered A, B and C. We are concerned here only with Tract C, consisting of 7,051 square feet in an irregular shape. In 1950 Hill leased Tract C to A. T. Bifano and appellant S. J. Bifano. This lease, which we shall speak of as the 1950 lease, explicitly covered all of Tract C, describing it by metes and bounds. The lessor was obligated to construct a building thereon for the lessees with approximate dimensions of 36 86 8 47 42 , to be occupied as a cafe. The term of lease was ten years beginning January 1, 1951, the rental being $410 per month plus a percentage of gross sales.

In either 1953 or 1954 A. T. Bifano acquired S. J. Bifano's interest in the restaurant, which was known as The Chef, and in October 1958 he asked Hill to renew the lease for another ten years. Hill wrote a note to his employee who typed the new lease, as follows:

'10/15/58

'Renew this lease for another 10 years from December 31, 1960 for $465.00 per month with the same percentage.

/s/ Hill.'

Hill testified that this note referred to the original 1950 lease. The new lease, which we shall call the 1958 lease, covered the ten-year period to begin on January 1, 1961, and Econo Builders, Inc., which had in the meantime become the owner of the property, was named as lessor and only A. T. Bifano as lessee.

Before the 1958 lease could go into effect, it was rewritten in 1960, in terms identical with those of the 1958 lease except that both A. T. and S. J. Bifano were named as lessees. It was backdated to October 17, 1958 (the date of the 1958 lease) and will be called herein the 1960 lease. S. J. Bifano was named as one of the lessees because he had purchased A. T. Bifano's interest in The Chef.

In both the 1958 and 1960 leases the property covered was described as follows:

'a building approximately 36 86 8 47 42 located in Tract No. C, consisting of 7,051 square feet (.162 acres, fronting towards Northwest Highway, near the new Lemmon Avenue.'

The 1958 and 1960 leases also provided for a monthly rental of $465 plus a percentage of gross sales. All three leases contained the following printed clause:

'(16) Lessee acknowledges that the Lessor has reserved and retained the sole ownership and control of all walks, drives, Parking facilities and Areaways of the shopping center; and, Lessee agrees to abide by all of Lessor's regulations for the control of traffic, Parking, cleanliness, and neat appearance of the whole shopping center and to secure observance thereof by his employees.' (Italics ours.)

All three leases also contained the following typewritten provision:

'Lessee agrees that a strip 10 ft. wide adjoining the No. and N.E. boundary lines extending between the West and S.E. boundary lines, and a strip 25 ft. wide adjoining the south boundary line extending between the west and S.E. boundary lines Of leased premises shall be used for vehicular traffic and Lessee agrees not to impede or block said traffic-ways or permit same to be impeded or blocked in any degree or manner.' (Italics ours.)

The area comprising the second of the two 'strips' mentioned in the last quoted paragraph was paved and used for parking automobiles, there being spaces thereon for the parking of nine vehciles, six in front and south of the restaurant and three on the east side of the building.

S. J. Bifano testified that when he went to Hill's office to sign the 1960 lease he noticed immediately the difference in the wording in the description of the property and asked Hill the reason therefor, to which Hill replied that one description was required by the lending agency, but that it was no longer required and that there were no differences in the leases. Hill testified that when the 1950 lease was executed Tract C abutted Marsh Lane on the East, but that the City later abandoned Marsh Lane and sold it to Hill, and that this property was contiguous to the east side of the Bifano lease.

All three leases contained a paragraph (19) providing that any increase in the ad valorem taxes assessed 'on the demised premises' shall be borne one-half by lessor and one-half by lessee. Hill's bookkeeper testified, and it was stipulated, that appellants shared in the tax increase on all of Tract C and not just in the tax increase on the building. Hill testified that appellants were charged with the ad valorem taxes on all of Tract C and not simply the ad valorem taxes on the building, and that appellants were paying taxes on more than the demised premises if all they had under the lease was the building.

The building covered by the leases was one of several in a line and was on the corner. There was a sidewalk under the eaves of the building giving access from the central portion of the shopping center, and there was a planter box containing ornamental shrubbery on the east end of the building.

By July 5, 1962 the appellee Gardens Development Company had become the owner of the shopping center, and on that date, under its direction, construction of a new building was begun adjoining the building covered by these leases on the east end thereof. In connection with this work there were barricades in front of the restaurant; and the east wall, planter box and part of the roof on the east end of the building were destroyed and later repaired, and there was a great deal of dust and noise in connection with the tearing up of some of the paving in front of the property. The new building completely covered the three parking spaces to the east of the leased building. Both of the appellants testified at length to the great damage done to their business by all of this, explaining that the barricades made it difficult, if not impossible, for their customers to enter the restaurant and as to the loss of business due to the dust and noise, the diminution of the parking area and the fact that the restaurant was no longer on the corner.

Appellants contended that if the entire Tract C of 7,051 square feet was not actually included in the lease, nevertheless they were entitled to the beneficial use and enjoyment thereof because such was reasonably necessary to the occupation and use of the building. They alleged in the alternative that the lease was ambiguous and should be construed as including all of the 7,051 square feet or, alternatively, that the lease should be reformed to include the entire tract because of mutual mistake or, alternatively, that appellees fraudulently misrepresented the extent of the property covered by the 1958 and 1960 leases; also that appellees' conduct constituted a constructive eviction of appellants. The appellees contend that the last two leases were never intended to cover anything other than the building, that there is no ambiguity in the lease, and that there was no mutual mistake or misrepresentation. The contentions of the parties will be noticed in greater detail in the course of the opinion.

The findings of the jury were: (1) the conduct of Gardens Development Company, in causing construction to be carried on adjacent to the restaurant, was done with the intention on the part of the defendants that the plaintiffs should no longer use and enjoy the premises; (2) such construction substantially interfered with plaintiffs' use of the leased premises; (3) this interference was permanent; (4) the plaintiffs completely abandoned the leased premises within a reasonable time after such interference; (5) plaintiffs' abandonment of their leased premises was a direct consequence of the construction of the building adjacent to their restaurant; (6) the plaintiffs were actually deprived from a portion of the leased premises by the landlord, or by his authority; (8) the reasonable market value in Dallas County on September 1, 1962 of the leasehold estate held by plaintiffs was $465 per month; (9) the reasonable value of the furniture and fixtures sold by plaintiffs from the business in question on August 15, 1962 was $6,000; (10) the sum of $1.00 would reasonably compensate the plaintiffs for exemplary damages; and (11) S. J. Bifano did not fail to pay the stipulated rent under the 1960 lease from September 1, 1962 to date. The jury answered 'None' to Issue No. 13 as to what would be a reasonable attorney's fee for enforcing or defending Gardens Development Company's rights or remedies under the 1960 lease; (14) that Gardens Development Company had not incurred any attorney's fees in enforcing or defending its rights or remedies under the 1960 lease; (15) any loss the plaintiffs might have sustained by reason of the construction of the adjacent building could have been compensated for in money damages without actual removal from their premises; and (16) ...