Charalambous v. Jean Lafitte Corp.

• Decision Date: 04 May 1983
• Docket Number: No. 08-81-00210-CV,08-81-00210-CV
• Citation: 652 S.W.2d 521
• Parties: Zacharias CHARALAMBOUS, et ux., Appellants, v. JEAN LAFITTE CORPORATION, et al., Appellees.
• Court: Texas Court of Appeals

Page 521

652 S.W.2d 521

Zacharias CHARALAMBOUS, et ux., Appellants, v. JEAN LAFITTE CORPORATION, et al., Appellees.

No. 08-81-00210-CV.

Court of Appeals of Texas El Paso.

May 4, 1983.

Appellees' Rehearing Denied

June 1, 1983.

Adrian Young, Law Office of Norwood J. Ruiz, Galveston, for appellants.

Ross Citti, Mills, Shirley, McMicken & Eckel, Galveston, for appellees.

Before STEPHAN F. PRESLAR, C.J., and WARD and OSBORN, JJ.

OPINION

WARD, Justice.

This is a suit by a tenant for damages arising out of the breach by the landlord of a commercial lease. The trial was to a jury which returned a verdict in the tenant's favor for $45,522.83 actual damages and $100,000.00 exemplary damages. The defendants' motions to disregard jury findings as to damages for $5,200.00 depreciation losses and exemplary damages of $100,000.00 were sustained, leaving a recovery of $40,322.83. The trial court, on the defendants' motion for new trial, ordered a remittitur which was filed by the plaintiffs, resulting in a final judgment being entered for the plaintiffs in the amount of $22,072.83. The plaintiffs appeal, and, as reformed, we affirm.

The plaintiffs, Zacharias Charalambous and his wife, as tenants, in July, 1975, entered into a written lease with the Jean Lafitte Corporation whereby they leased for three years a portion of the first floor of the Jean Lafitte Hotel in Galveston to be used as a restaurant and nightclub. Plaintiffs then took possession of the premises, entered into business and occupied the premises until a dispute arose between the plaintiffs and the landlord's agent, Ken Fagan, who claimed that a band that played in the nightclub was disturbing the hotel guests. It was the plaintiffs' version that on January 10, 1976, at the supper hour and without warning, Mr. Fagan cut off the utilities at the restaurant and club. After some discussion, the electric power was turned back on. The gas could not be relit in the kitchen, resulting in substantial food spoilage and loss of restaurant business. The plaintiffs' then contended that about January 21, 1976, the landlord and Mr. Fagan, who became defendants in the subsequent law suit, changed the locks on the restaurant doors, ousted the plaintiffs and terminated the lease without cause.

Plaintiffs filed suit against the hotel company and Mr. Fagan for the wrongful eviction, for the food damages resulting when the defendants temporarily cut off the plaintiffs' electricity and gas service on January 10, and their damages following their eviction including their expenses in removing their business to other premises, depreciation on the value of their property as a result of their moving, their loss of profits and loss of prepaid rent. Also, among their actual damages was a claim for breach of contract with the defendants whereby the plaintiffs were to furnish food and beverages to the crew of a ship which was docked in Galveston and which crew was temporarily staying at the Jean Lafitte Hotel. For these services rendered by the plaintiffs, the defendants made a partial payment and delivered to the plaintiffs a check for the remaining balance of $2,022.83. Payment on the check was thereafter stopped by the defendants and this likewise became one of the items of damages. The plaintiffs alleged that all these various actions and breaches were willful, unlawful and malicious and that they were entitled to exemplary damages.

At trial, the plaintiffs obtained favorable findings on all issues submitted to the jury. The jury found that: (1) the defendants withheld money that was owed to the plaintiffs for providing food to the ship's crew, (2) the additional necessary sum of money which would reasonably compensate for providing the food to the ship's crew was $2,022.83, (3) the defendants' acts in temporarily cutting off the electricity and gas service on January 10 resulted in a monetary loss to the plaintiffs, (4) for that loss the plaintiffs would be entitled to the sum of $500.00, (5) failed to find that the plaintiffs allowed the playing of musical instruments on their premises in such a manner or with such volume as to reasonably annoy or disturb the guests at the Jean Lafitte Hotel, (6) failed to find that the defendants gave the plaintiffs written notice that the maintaining of a live band on their premises was in violation of the lease, (8) found that the following sums would reasonably compensate the plaintiffs for the following: (a) $500.00 for the expense of removing their business to other premises; (b) $5,200.00 for depreciation in the value of their property as a result of moving; (c) $36,500.00 for their loss of profits; (d) $800.00 for their loss of prepaid rent; (9) found from a preponderance of the evidence that any one of the following acts were done by the defendants with conscious indifference to the rights of the plaintiffs: (a) failure to pay any monies due the plaintiffs for the meals furnished to the ship's crew; (b) shutting off the power to the plaintiffs' restaurant and club on January 10; (c) in changing the locks and effectively preventing the plaintiffs from carrying on their business after January 21, 1976; (10) that $100,000.00 should be awarded to the plaintiffs as exemplary damages.

After the return of the verdict and before entry of judgment, defendants filed motions under Rule 301, Tex.R.Civ.P., for judgment non obstante veredicto and a motion to disregard jury findings. The motion for judgment non obstante veredicto was to the effect that under the undisputed evidence the plaintiffs maintained a loud band which disturbed the hotel guests, constituting a breach of the lease, which gave the defendants the right to forfeit the lease and the right to immediately reenter and repossess without liability for any of the submitted damages. The motion to disregard jury findings was to the effect that there was no evidence to support the submission of Special Issues Nos. Two, Four, Five, Six, Eight and Ten. At the same time, and again before entry of judgment, the defendants filed a motion for new trial and in the alternative for a remittitur that the award of damages in the amount of $145,522.83 was grossly excessive under the circumstances particularly with respect to $36,500.00 in lost profits and $100,000.00 exemplary damages.

The trial court then entered final judgment reciting that the defendants' motion to disregard the jury findings to sub-part two of Special Issue No. Eight (the depreciation) and to Special Issue No. Ten (the exemplary damages) should be sustained and that the plaintiffs should have and recover of and from the defendants the sum of $2,022.83 as found by the jury in answer to Special Issue No. Two, the sum of $500.00 as found by the jury in answer to Special Issue No. Four, the sum of $500.00 as found by the jury in answer to sub-part one of Special Issue No. Eight, and the sum of $800.00 as found by the jury in answer to sub-part four of Special Issue No. Eight. The court further found that the amounts found by the jury in answer to sub-part three of Special Issue No. Eight ($36,500.00 for loss of profits) was grossly excessive and the court directed the plaintiffs to remit the sum of $18,250.00 of the sub-part three finding within ten days; otherwise, the defendants' motion for new trial would be granted. It was finally ordered that in the event the plaintiffs did remit the sum of $18,250.00 within ten days, it was ordered, adjudged and decreed that the plaintiffs would have and recover from the defendants the total sum of $22,072.83 with interest as a final judgment.

The plaintiffs thereupon filed their remittitur instrument containing the following paragraph:

Now, however, ZACHARIAS CHARALAMBOUS and wife, CECILIA CHARALAMBOUS, Plaintiffs, in the above-entitled and numbered case, waive and release all portions of the judgment rendered herein on the fourth day of December, 1980, except the sum of $22,072.83 plus costs, and consents to remit the sum of $18,250.00 on said judgment, and consents that judgment for the sum of $22,072.83 plus costs be entered herein, and that execution issue for that sum only.

Only the plaintiffs have perfected appeal herein, and they present three points and a conditional fourth point. Defendants have presented reply points but no counterpoints or crosspoints.

The plaintiffs' first three points of error complain of the trial court's action in disregarding certain of the jury findings and in refusing to submit an issue to the jury on attorney's fees. The plaintiffs' conditional fourth point complains of the trial court's action in suggesting the remittitur. Defendants' first reply point is to the effect that no appeal lies from the agreed final judgment and the plaintiffs' acceptance thereof, the defendants arguing that the plaintiffs voluntarily accepted the remittitur suggested by the court and specifically waived and released all portions of the judgment except for the $22,072.83 and consented to the entry of judgment in that amount, that the plaintiffs avoided the risk and expense of a new trial and are bound by their election to accept a reduced judgment rather than to undergo the risk and expense of a new trial, and if they are not bound by their written agreement to accept a reduced amount, that a new trial has been granted to defendants from which no appeal lies.

The defendants rely on City National Bank in Wichita Falls v. Jacksboro National Bank, 602 S.W.2d 511 (Tex.1980). There, the trial court rendered judgment on a verdict in favor of the Jacksboro National Bank as plaintiff and in so doing overruled the defendant's motion to disregard the jury findings and motions for judgment non obstante veredicto. The defendant then filed a motion for new trial and in the alternative...