Edwards v. Ward Associates, Inc.

• Citation: 367 S.W.2d 390
• Decision Date: 19 April 1963
• Docket Number: No. 16162,16162
• Parties: Dr. Walter T. EDWARDS, Appellant, v. WARD ASSOCIATES, INC., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 390

367 S.W.2d 390

Dr. Walter T. EDWARDS, Appellant, v. WARD ASSOCIATES, INC., Appellee.

No. 16162.

Court of Civil Appeals of Texas, Dallas.

April 19, 1963.

Rehearing Denied May 17, 1963.

Wade, Davis, Callaway & Marshall, Fort Worth, for appellant.

J. Manuel Hoppenstein and Jerome L. Prager, Dallas, for appellee.

BATEMAN, Justice.

Suit was filed by appellee for rents and a reasonable attorney's fee alleged to be due under a written lease. Appellant alleged in his answer that at the time of execution of the lease the premises covered thereby consisted only of a floor, four walls and ceiling, in which appellee agreed to make certain improvements and install heating and cooling equipment; that from the time appellant went into possession (in August 1959) pools of water accumulated near the front doorway, both inside and out, every time it rained, making it impossible for appellant to use the premises as a medical clinic, and that appellee's refusal to correct this situation resulted in the constructive eviction of appellant, by reason of which he surrendered the premises to appellee in December 1960. Appellant also alleged that appellee failed to keep the areas in the rear of the demised premises clean and free from garbage and other refuse, rendering the premises untenantable as a medical clinic, that to induce appellant to enter into the lease contract appellee promised to have a street adjacent to the premises paved and also to refer all persons coming to appellee's nearby drug store, who inquired for medical attention or services, to appellant, both of which promises appellee failed to perform; also that appellee breached its contract to install suitable cooling and heating in the premises; all of which derelictions on the part of appellee resulted in damages of $25,000 to appellant, for which he made counterclaim.

The jury found in response to special issues that (1) appellee expressly waived written notice of defects in the premises; (2) a material defect existed in the leased premises causing flooding by rain water which prevented appellant from maintaining his doctor's office therein, (3) of which appellant advised appellee prior to moving out of the premises; (4) that appellee failed and refused to correct such material defect prior to appellant's moving out; (5) that a material defect existed in the air conditioning system which prevented appellant from maintaining his doctor's office therein, (6) of which appellant advised appellee prior to moving out of the premises, (7) that appellee failed and refused to correct such material defect prior to appellant's moving out; (8) that appellant suffered damages by reason of the matters inquired about, (9) in the sum of $500.

Appellee filed motions to disregard all of said jury findings and for judgment non obstante veredicto for the amount of rents admittedly unpaid for the remainder of the term of the lease and for a reasonable attorney's fee. Appellant filed a motion for judgment on the verdict, that the appellee take nothing and that appellant recover $500 on his counterclaim.

The court sustained appellee's motion to disregard the jury findings, and rendered judgment non obstante veredicto awarding to appellee the rents and attorney's fee sued for and decreeing that appellant take nothing by his counterclaim. In the body of the judgment the court assigned various reasons for his actions which are denominated 'findings of fact and conclusions of law' but which we did not consider in determining whether the judgment non obstante veredicto should stand or be reversed. 33 Tex.Jur.2d 531.

We sustain the action of the trial court in rendering judgment notwithstanding the verdict in favor of appellee for the rents and attorney's fee. In making this determination we have considered the testimony in the light most favorable to appellant and have indulged every intendment reasonably deducible from the evidence in favor of appellant and against the judgment. 3-B Tex.Jur. 382.

In his first three points of error the appellant contends that the court erred in overruling his motion for judgment on the verdict, and in holding that neither the findings nor the evidence are sufficient to establish a defense. We find no merit in any of these assignments.

It is apparent from the record and the briefs that appellant abandoned his defensive theory of constructive eviction. The judgment states that his counsel abandoned it in open court, and in appellee's brief the same statement is made. The recital in the judgment imports verity. 49 C.J.S. Judgments Sec. 437, p. 869; Bass v. Hoagland, 5 Cir., 172 F.2d 205, 208. In appellant's reply brief he not only does not deny the statement, but in criticizing the pertinence of certain authorities cited by appellee states that they 'deal with constructive eviction and these cases have no application to our case. Our case is based upon the landlord's failure to furnish a premises suitable for use as a doctor's office in which he failed in two very material respects as shown by the evidence and the findings of the jury.'

Moreover, since no issues were submitted or requested on the essential elements of constructive eviction, we hold that this defensive theory was waived. Stillman v. Youmans, Tex.Civ.App., 266 S.W.2d 913, no wr. hist.; Nabors v. Johnson, Tex.Civ.App., 51 S.W.2d 1081, no wr. hist.; Richker v. Georgandis, Tex.Civ.App., 323 S.W.2d 90, err. ref. n. r. e.; Hoover v. Wukasch, Tex.Civ.App., 274 S.W.2d 458, err. ref. n. r. e.; Rule 279, Vernon's Texas Rules of Civil Procedure.

Furthermore, with respect to appellant's claim that puddles of water gathered on the sidewalk immediately inside and outside the front door each time it rained, making the premises untenantable and thus excusing him from liability for the rents reserved in the lease, it is our holding that if the facts shown any obligation on the part of appellee to remedy this situation, such obligation would be independent of appellant's obligation to pay the rents provided for and reserved in the lease. As stated in Mitchell v. Weiss, Tex.Civ.App., 26 S.W.2d 699, 700:

'The covenant of the landlord to repair and the tenant's covenant to pay rent are regarded as independent covenants unless the contract between the parties evidences the contrary. Accordingly, the breach by the landlord of his covenant does not justify the refusal of the tenant to perform his covenant to pay rent. Certainly this is true when the tenant remains in possession, occupancy, and use of the premises as the undisputed evidence in this case shows was done. The tenant is remitted to the right to recoup himself in the damages resulting from the landlord's breach of his covenant to repair.'

See also 32 Am.Jur. 408, Sec. 499; Ammons v. Beaudry, Tex.Civ.App., 337 S.W.2d 323, err. ref.

Appellant's complaints of the failure of the appellee to remove the garbage and other refuse from the areas to the rear of the premises, and its failure to have the street adjacent to the...