Bifano v. Young

• Decision Date: 29 December 1983
• Docket Number: No. 13-83-195-CV,13-83-195-CV
• Citation: 665 S.W.2d 536
• Court: Texas Court of Appeals
• Parties: BIFANO, Anthony Thomas & Charles Bifano, Jr., d/b/a Bifano Brothers, Appellants, v. YOUNG, D.J., Appellee.

Page 536

665 S.W.2d 536

BIFANO, Anthony Thomas & Charles Bifano, Jr., d/b/a Bifano Brothers, Appellants, v. YOUNG, D.J., Appellee.

No. 13-83-195-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 29, 1983.

Rehearing Denied Jan. 26, 1984.

Arthur M. Meyer, Jr., H. Campbell Zachry, Dallas, for appellants.

David B. Moseley, Jr., Moseley, Jones, Allen & Fuquay, Dallas, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

This is a suit on a written lease agreement. Appellee, Dorothy Jean Young, brought suit against appellants, Anthony Thomas Bifano and Charles Bifano, Jr., individually and d/b/a Bifano Brothers, for the amount of unpaid contractual rental due for the last four months of the lease term. Appellee also claimed reimbursement for tax and utility payments owed on the lease property and reasonable attorney's fees. Appellants answered and pled fraud in the inducement, both as an affirmative defense and as a counterclaim. Following a jury trial, the court rendered judgment in favor of appellee for actual damages, plus attorney's fees. Appellants appeal to this Court on an equalization transfer from the Supreme Court. We affirm the judgment of the trial court.

In November of 1978, appellee purchased a building located in Dallas, Texas, owned by the appellants. At the time of sale appellee and appellants executed a lease agreement, leasing the subject property back to appellants for a period of one year, beginning on December 15, 1978, and ending on December 14, 1979. Appellants were in the retail fur business and leased the property to store fine furs, cleaning equipment and machines used for repair. The lease stipulated a monthly rental of $1,478.60, not subject to offset or deduction. The lease agreement also specified that appellants pay as "additional rent" all real estate taxes on the property, as well as the cost of all utility services.

It was undisputed that appellants paid all the lease payments through August 1979 and delivered to appellee their check for the September 1979 rent payment. Later, however, appellants directed the drawee bank to stop payment on this check. Appellants did not make further rental lease payments to appellee for the last three months of their lease. Appellee claims that, in addition to the last four months lease payments that were not paid, appellants owe for the county, city and school real estate taxes due and payable on the leased premises.

Appellants contend on appeal that prior to the lease execution, appellee negotiated to repair leaks in the roof of the premises and, alternatively, to replace the roof in exchange for a $5,000.00 reduction in the purchase price of the building. Appellants further alleged and attempted to prove at trial that this promise had been made fraudulently, without any intent that it be performed, and that, since this promise was a material element, and had been relied upon, the lease was void.

Appellee testified that she was unaware of any problems concerning the roof at the time the lease agreement was signed. Appellee was notified by appellant, Anthony Bifano, by letter dated July 12, 1979, that the roof on the building leaked. Appellee contends that, during the early part of September, the roof was repaired. Appellant, Anthony Bifano, testified they began to move furs from the building shortly after notice of the condition of the roof was given to appellee and completed moving the furs in August of 1979. Appellants contend they had abandoned the premises by the time the repairs were made in September because the roof leaked so severely it endangered their goods. However, the record shows appellants continued to use the building for storing their cleaning and other heavy equipment.

At trial, appellee sought to recover the unpaid contractual rental under the lease agreement. In answer to special issues, the jury found that appellee did not know nor should have known of leaks in the roof of the building prior to July 12, 1979; that appellee's failure to repair the leaks or replace the roof prior to September of 1979 did not interfere with appellants' use of the premises; appellants did not abandon said premises as a result of the failure to repair the leaks on the roof; and appellee's refusal or failure to repair or replace the roof on the Inwood premises was not a producing cause of damage to appellants. Judgment was entered in favor of appellee for the amount of unpaid lease rental, taxes and attorney's fees.

Appellants' first through fourth points of error complain that the trial court refused to consider and act upon appellee's failure to pursue her exclusive remedy under the terms of the lease and to present evidence proving the damages provided by such remedy.

It is well settled in Texas that, upon the failure of a lessee to pay rent, the lessor has the option of either suing immediately for anticipatory breach of the contract and recovering damages as a result of such breach, or the lessor may stand on his contract and sue for the past-due rentals after they come due. Taco Boy, Inc. v. Redelco Co., Inc., 515 S.W.2d 319 (Tex.Civ.App.--Corpus Christi 1974, no writ); Western Flavor Seal Company v. Kallison, 389 S.W.2d 521, 522 (Tex.Civ.App.--San Antonio 1965, no writ); Employment Advisors, Inc. v. Sparks, 364 S.W.2d 478 (Tex.Civ.App.--Waco 1963), writ ref'd n.r.e., 368 S.W.2d 199 (Tex.1963); Amco Trust v. Naylor, 311 S.W.2d 257, 260 (Tex.Civ.App. --san AntoNio 1958), rev'd on other grounds, 159 Tex. 146, 317 S.W.2d 47 (1958); Willis v. Thomas, 9 S.W.2d 423 (Tex.Civ.App.--San Antonio 1928, writ dism'd); 35 Tex.Jur.2d, Landlord & Tenant § 142 (1962). The results can be almost identical on short-term leases. Here, there were only four months remaining in the lease at the time of default.

If the lease contract specifically provides for only one remedy and denominates that this is the only remedy, then the lessor is bound by the exclusive remedy set out in the contract. Remedies provided for in a contract may be permissive or exclusive. See Vandergriff Chevrolet Company, Inc. v. Forum Bank, 613 S.W.2d 68 (Tex.Civ.App.--Fort Worth 1981, no writ); Stergois v. Babcock, 568 S.W.2d 707, 708 (Tex.Civ.App.--Fort Worth 1978, writ ref'd n.r.e.). The mere fact that the contract provides a party with a particular remedy does not necessarily mean that such remedy is exclusive. Vandergriff at 70; West Texas Utilities Company v. Huber, 292 S.W.2d 702, 703 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.). A construction which renders the specified remedy exclusive should not be made unless the intent of the parties that it be exclusive is clearly indicated or declared. Ryan Mortgage Investors v. Fleming-Wood, 650 S.W.2d 928 (Tex.App.--Fort Worth 1983, no writ); Tabor v. Ragle, 526 S.W.2d 670, 676 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.); Wilburn v. Missouri-Kansas-Texas Rail Co. of Texas, 268 S.W.2d 726, 731 (Tex.Civ.App.--Dallas 1954, no writ). In determining the intent of the parties to an unambiguous written instrument, the general rule is that every clause must be given effect with a view toward what is objectively stated in the language of the instrument. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522 (Tex.1982); Vandergriff, at 70; Skyland Developers, Inc. v. Sky Harbor Associates, 586 S.W.2d 564, 570 (Tex.Civ.App.--Corpus Christi 1979, no writ).

Appellants contend that the lease can only be interpreted as stipulating that the exclusive remedy upon default was the termination of the lease and recovery of damages. Section 20(A) of the lease contract states:

20. REMEDIES OF LANDLORD: Upon the occurrence of any of the events of default listed in section 19, the landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever:

A. Terminate this lease, in which event tenant shall immediately surrender the demised premises to landlord.... Tenant shall pay to landlord on demand the amount of all loss and damage which landlord may suffer by reason of such termination, whether through inability to relet the demised premises on satisfactory terms or otherwise.

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Following the express remedy in § 20(A), there are two other alternate remedies set out in paragraphs (B) and (C) of § 20 of the "form type" lease. One is to the effect that appellee could "Enter upon and take possession of the demised premises by force ... etc," and a final paragraph to the effect that the above remedies were non-exclusive. In the "form type" lease signed by appellants and appellee, paragraphs (B) and (C) of the form and the non-exclusive paragraph of the form were marked through and initialed by both parties. Appellants contend that, by striking through these form provisions for remedies on default, the parties intended that there was only one remedy available to appellee and that was the remedy specified in paragraph (A). We disagree. The lease specifically provided that the appellee had the option to pursue any one or more of the following remedies without any notice or demand whatsoever. This provision was not marked through or eliminated by the parties.

The appellants knew very well the remedy that the appellee pursued as a matter of fact of what actually took place prior to trial. The appellants did not object or except to appellee's pleading. Appellants' pleadings offered at trial did not raise the issue of "exclusive remedy" under the lease agreement. Rather, appellants' defense and counterclaim for damages focused on allegations of fraudulent inducement by appellee as their basis for termination of the agreement and release of further liability. Appellants raised the "exclusive remedy" argument for the first time on Motion for Directed Verdict at the close of all testimony at trial. The motion was overruled by the trial court. Appellants failed to pursue this same exclusive remedy argument on Motion for New Trial. Appellants now...