Briargrove Shopping Center Joint Venture v. Vilar, Inc.

• Decision Date: 30 November 1982
• Docket Number: No. 01-81-0847-CV,01-81-0847-CV
• Citation: 647 S.W.2d 329
• Parties: BRIARGROVE SHOPPING CENTER JOINT VENTURE, Appellant, v. VILAR, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 329

647 S.W.2d 329

BRIARGROVE SHOPPING CENTER JOINT VENTURE, Appellant, v. VILAR, INC., Appellee.

No. 01-81-0847-CV.

Court of Appeals of Texas Houston, (1st Dist.).

Nov. 30, 1982.

Rehearing Denied Dec. 23, 1982.

Brice Tondre, Houston, for appellant.

Michael Neel, Houston, for appellee.

Before EVANS, C.J., and DYESS and STILLEY, JJ.

OPINION

DYESS, Justice.

The appellant brought this suit in the court below claiming that the appellee violated the terms of a lease entered into between the two. The appellee filed a cross claim against the appellant alleging that the appellant constructively evicted the appellee, thereby breaching the lease and causing the appellee to incur expenses it would not otherwise have incurred. The trial was before a jury which decided in favor of the appellee.

The appellant raises seventeen points of error, all of which we overrule, affirming the judgment below.

In September 1975 the appellant, Briargrove Shopping Center, leased a warehouse at the back of the shopping center to the appellee, Vilar, Inc., d/b/a Swedish Auto Repair, for a period of three years. There were two aspects of the property that were appealing to Rolf Larsson, the President of appellee: (1) the cost of renting the building, which was only $0.10 per square foot and (2) a vacant concrete area in front of the building that would hold a number of cars. Larsson testified that it would be impossible for an auto repair shop to profitably exist without the use of a parking lot near the garage on which cars could be parked when they were not being worked on.

When Larsson signed the lease, there was no discussion of rules or regulations concerning the parking area in front of the premises, though an agreement was made that mechanics would not work on cars on the parking area outside of the shop.

In July, Larsson learned that the Shopping Center planned to build a theatre in front of his shop. Although this worried him slightly, it did not appear at that time that the theatre would take up a major portion of the area in front of the shop. The shop, located behind the shopping center, was situated at the intersection of two alleyways, one leading from the street in front of the shopping center to the back of the shopping center, the second providing access from a side street.

The construction began around September or October of 1976 and continued at least through December 31, 1976, when Larsson moved to a new location. There was testimony that the construction consumed all but a strip of ten feet in front of the shop. One of the two accessways to the repair shop was completely cut off, except for a shell driveway built around the construction site, and even the shell driveway was often impassable for cars because it was so muddy. The other alleyway (hereinafter referred to as the concrete alleyway) was also frequently blocked by workmen and machines. One of Larsson's customers testified that on at least one occasion he was blocked in by delivery trucks.

Not only did Larsson receive complaints from customers, but also from his mechanics, who were forced to walk much farther to reach the cars and to wash their feet before getting into the cars because of the muddy conditions around the construction. Larsson was allowed to park some cars along the concrete alleyway during the construction but he was told that after the completion of the theatre, the alleyway would return to a no-parking zone. Larsson decided that he could no longer continue a profitable business at Briargrove Shopping Center without sufficient parking near the shop. He was also afraid of losing some of his mechanics so he rented a new shop, and moved there as of January 1, 1977. Thus, December, 1976 was the last month for which he paid rent on his three year lease at Briargrove.

The appellant's first six points of error pertain to special issue number one by which the jury was asked if Briargrove breached the lease it signed with Swedish Auto, and if the breach was a material breach.

Points one through three will be considered together because they require this court to use the same scrutiny in answering them. In point one, the appellant claims that the court erred in submitting special issue number one because there was no material fact issue with respect to the breach of the lease. In point two, the appellant claims that the trial court erred in refusing the appellant's motion for a directed verdict concerning the appellee's claim that the appellant breached the lease. In the third point of error, the appellant maintains that its requests for a judgment non obstante verdicto and to disregard special issue number one should have been granted.

When an appellant maintains that the trial court erred in submitting a special issue to the jury or raises either of the claims raised by the appellant in points 2 and 3, he has raised a "no evidence" or legal insufficiency point. Casey v. Barkley, 527 S.W.2d 256, 260 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd. n.r.e.); Southwestern Bell Telephone Co. v. Sims, 615 S.W.2d 858 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). In reviewing such an objection, the appellate court must consider only the evidence and inferences that may be reasonably drawn therefrom that are favorable to the issues submitted to the jury and the conclusions reached by it, and to disregard all of the evidence and inferences to the contrary. Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977). The trial court can properly submit an issue where there is any evidence more than a scintilla which is probative in supporting the submission. Everman Corporation v. Haws and Garrett General Contractors, Inc., 578 S.W.2d 239, 544 (Tex.Civ.App.--Fort Worth 1979, no writ). Evidence has probative force when it is more than a mere surmise or suspicion and serves to prove the asserted proposition. First National Bank of Amarillo v. Bavert, 622 S.W.2d 464, 467 (Tex.Civ.App.--Amarillo 1981). There was more than a scintilla of evidence to support the submission on material breach.

Although the lease reserved the right of the landlord to change "... the entrances, exits, traffic lanes and the boundaries and locations of the parking area or areas ...," it guaranteed that "... said parking area or areas shall at all times be equal or equivalent ..." to the area indicated on an attached exhibit. There was no question that the area immediately in front of the shop was greatly diminished in size by the construction.

Moreover, the appellee testified that his garage was not large enough to hold all of the cars that came through his shop, and, consequently, he needed the area for parking. The only other parking area available to the appellee was 300-400 feet from the shop and required the mechanics to walk much farther to reach the cars on which they were to work. One of the mechanics testified that he would not have remained an employee very long under the conditions present from September to December. He also testified that he was having to work two to three additional hours a day to make the same amount of money as before the construction began.

Not only were the mechanics having to go farther to reach the cars, but they were having to trod through mud to reach them. One of the two accessways was often blocked by construction workers and equipment or delivery trucks. A customer testified that he was blocked in on at least one occasion. The second accessway was often impassable because it was torn up by construction, and the shell driveway built to circumvent the work was often too muddy to traverse.

The above constitutes more than a scintilla of evidence. Points of error one through three are overruled.

In its fourth point of error the appellant complains of the submission of special issue number one because this permitted the jury to construe the contract, a function reserved solely for the judge.

The appellant is quite correct in his position that it is the court's duty to construe a contract that has not been questioned as ambiguous. Pickering v. First Pyramid Life Insurance Co. of Amarillo 491 S.W.2d 184 (Tex.Civ.App.--Beaumont 1973, writ ref'd. n.r.e.). However, special issue number one did not require that the jury construe the contract in determining whether or not a breach of the contract occurred. Cowman v. Allen Monuments, Inc., 500 S.W.2d 223 (Tex.Civ.App.--Texarkana 1973, no writ). Such a question is a fact issue, the conclusion being reached by applying the clear words of the contract to the situation at hand. The contract in this case guaranteed that the common areas, parking areas, and alleyways would not be decreased in size. Whether or not the building of the theatre violated that provision, and was a material breach, was a question of fact for the jury. Advance Components, Inc. v. Goodstein, 608 S.W.2d 737, 739 (Tex.Civ.App.--Dallas 1980, writ ref'd. n.r.e.). Cannan v. Varn, 591 S.W.2d 583 (Tex.Civ.App.--Corpus Christi 1979, no writ) contained a special issue exactly like ours except for minor differences due to the different fact situation. The appellant in the case also questioned the propriety of the special issue on the basis that it called for the jury to construe the contract. The court had the following reply for the contention.

The jury was not presented with the construction of the contract but rather the ascertainment of whether there was a breach of the contract on or about January 15, 1975. The contract, even though allowing for some variation, was clear in that it did specify the time for performance. The jury's duty was to decide a factual question whether performance occurred within that time.

Id. at 589.

The fourth point of error is overruled.

In point of error five the appellant complains of the trial judge's refusal to submit, in lieu of special issue number one, the special issue requested by the appellant. The special issue submitted to the jury asked, "Do you find from a preponderance of the...