Forest Park Lanes, Limited v. Keith, 17015

• Decision Date: 02 May 1969
• Docket Number: No. 17015,17015
• Citation: 441 S.W.2d 920
• Parties: FOREST PARK LANES, LTD., et al., Appellants, v. Charles F. KEITH et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 920

441 S.W.2d 920

FOREST PARK LANES, LTD., et al., Appellants, v. Charles F. KEITH et al., Appellees.

No. 17015.

Court of Civil Appeals of Texas.

Fort Worth.

May 2, 1969.

Rehearing Denied June 6, 1969.

Hudson, Keltner, Smith & Cunningham, and Joe Bruce Cunningham, Fort Worth, for appellants, Forest Park Lanes, Ltd., Forest Park Shopping Center, Ltd., Aaron Rashti, and George Rashti.

Garrett & Nation, and John Garrett, Fort Worth, for appellant Jack E. Turnbow.

Rawlings, Sayers & Scurlock, and Nelson Scurlock, Fort Worth, for appellees Charles F. Keith and wife, Opal Keith.

Richard U. Simon, Fort Worth, for appellee Broben, Inc. d/b/a Ol' South Pancake House.

Hudson, Keltner, Smith & Cunningham, and Joe Bruce Cunningham, Fort Worth, for appellees, Forest Park Shopping Center, Ltd., Aaron Rashti and Abe Rashti.

Donald C. Bubar, Fort Worth, for appellee Tandy Leather Co.

OPINION

MASSEY, Chief Justice.

STATEMENT OF THE NATURE AND RESULT OF THE SUIT

This was a suit filed by plaintiffs, Charles F. Keith and wife, Opal Keith, to cancel a long term lease that they had executed as lessors in 1958, and also to recover certain rentals, taxes and attorney's fees which they claimed to be due. The defendants were Forest Park Lanes, Inc., Forest Park Lanes, Ltd., Forest Park Shopping Center, Ltd., Aaron Rashti, George Rashti and Jack E. Turnbow. Intervenors were Tandy Leather Company of Texas and Broben, Inc., a corporation doing business under the name of Ol' South Pancake House.

In addition to denying the claims of plaintiffs, defendants Forest Park Lanes, Ltd., Forest Park Shopping Center, Ltd., Aaron Rashti and George Rashti filed a counterclaim against plaintiffs and also a cross-action against the other defendants. The case was tried to a jury beginning on February 19, 1968 and on February 28, 1968, the trial court on its own motion withdrew the case from the jury, except as to certain damages, and the jury returned a verdict finding in response to the only four special issues submitted as follows:

1. That the amount of $3,894.00 was a reasonable monthly rental of the property in question for the period from June 1, 1966 to May 1, 1967, inclusive. (In so answering the jury was instructed that it was to assume that tenant or tenants would pay all ad valorem taxes against the property.)

2. That the amount of $18,700.00 was a reasonable attorney's fee for the services of plaintiffs' attorneys 'in representing the plaintiffs in this suit.'

3. That the amount of $2,500.00 would be a reasonable attorney's fee for the services of Tandy Leather Company's attorneys in representing them in this suit.

4. That the amount of $8,500.00 would be a reasonable attorney's fee for the services of Jack Turnbow's attorneys in defending the action brought against him by plaintiffs.

Following the jury verdict, defendants Forest Park Lanes, Ltd., Forest Park Shopping Center, Ltd., Aaron Rashti and George Rashti filed a Motion for Judgment, a Motion that the findings of the jury be disregarded and a Motion for Judgment Non Obstante Veredicto. These motions were overruled on June 12, 1968 and on that date, the trial court entered judgment providing as follows:

1. That the plaintiffs recover possession of the property described in the Lease Agreement and that their title be quieted and adjudged to be free and clear of any cloud arising from any and all claims of any of the defendants.

2. That plaintiffs recover of and from Tandy Leather Company of Texas the sum of $4,812.00 with interest and that they also recover the sum of $10,332.00 which had been paid into the registry of the Court by Tandy Leather Company of Texas.

3. That the balance of $2,500.00 paid into the registry of the Court by Tandy Leather Company of Texas be paid to the attorneys for Tandy Leather Company of Texas.

4. That plaintiffs recover from Broben, Inc., a corporation doing business as Ol' South Pancake House, the sum of $2,443.50 plus interest and also that they recover the sum of $17,104.50 paid into the registry of the Court by Broben, Inc.

5. That the plaintiffs recover of and from Forest Park Lanes, Inc ., Forest Park Lanes, Ltd., Aaron Rashti, George Rashti and Jack Turnbow, jointly and severally, the sum of $59,175.51 and that they recover the sum of $7,591.94 paid into the registry of the Court by defendants.

6. That plaintiffs recover of and from defendants, Forest Park Lanes, Ltd., Aaron Rashti, George Rashti and Jack Turnbow, jointly and severally, the sum of $128,243.67 with interest.

7. That defendants, Jack Turnbow, Aaron Rashti, George Rashti and Forest Park Lanes, Ltd., recover judgment against Forest Park Lanes, Inc. for $59,175.51.

8. That the Lease Agreement entered into by Tandy Leather Company of Texas and Forest Park Shopping Center, Ltd. be fully terminated as of June 1, 1967.

All other relief sought by all parties was denied. All relief sought by plaintiffs in their pleadings was granted and in general all relief sought by defendants against plaintiffs and the other defendants was denied. From such judgment Aaron Rashti, Forest Park Lanes, Ltd., George Rashti, Jack Turnbow, and Forest Park Shopping Center, Ltd. have appealed.

Judgment is reformed by reduction of damages and deletion of attorney's fees, and, as so reformed, affirmed.

THE PARTIES

In order to try to simplify the statements hereafter, Charles F. Keith and Opal Keith will be referred to as 'Plaintiffs'; Forest Park Lanes, Ltd., Forest Park Shopping Center, Ltd., Aaron Rashti and George Rashti will be referred to as 'Defendants'; Forest Park Lanes, Inc. will be referred to by its full name; Jack Turnbow will be referred to as 'Turnbow'; Tandy Leather Company of Texas will be referred to as 'Tandy'; and Broben, Inc., doing business as Ol' South Pancake House will be referred to as 'Pancake House'.

(It should be pointed out also that Forest Park Lanes, Inc., which did not appeal, did not appear through counsel or otherwise at the trial and all judgments taken against it were essentially default judgments, although the judgment does not so recite. Likewise, the Pancake House did not appear and participate at the trial.)

Where reference is made to defendants, it will include only the defendants above mentioned, i.e., excluding Forest Park Lanes, Inc., Tandy, Pancake House, and (except inferentially in instances where his interest and contentions are substantially identical with those we have designated 'defendants') the defendant Turnbow. Except as to the cross-action filed by Turnbow against defendants, the interest of the defendants and Turnbow is essentially the same.

Defendants filed an original and Amended Motion for New Trial based upon which they perfected appeal. The same is true as to Turnbow, who separately participates, and on the appeal he complains not only of the relief granted plaintiffs, but because he was not granted relief of contractual indemnity by way of his cross-action against Forest Park Shopping Center, Ltd., Aaron Rashti and Abe Rashti, as its general partners.

SITUATION PRELIMINARY TO DISPUTE

The fact situation of the case is complicated. We will outline in this preliminary statement the circumstances resulting in the litigation.

In 1944, plaintiffs purchased approximately 30 acres in Trinity Park just east of what is now known as University Drive in the City of Fort Worth. Following the purchase of the land, the plaintiffs used this land for the operation of a driving range, an amusement park and leased a portion of it out to various tenants including a nursery.

On December 24, 1958, plaintiffs leased a portion of this property to Aaron Rashti. This lease is the basic controversy in this lawsuit and the lease was introduced in evidence as plaintiffs' Exhibit 1. The property covered thereby is shown on a plat attached to the lease. There are three tracts, Tract 'A', Tract 'B' and Tract 'C'. The basic lease covered Tract 'A' and gave options as to Tract 'B' and Tract 'C'. The option as to Tract 'B' was exercised but was not exercised as to Tract 'C'. Generally, the bowling alley that was constructed was built on Tract 'A' and the Pancake House building was built on Tract 'B'.

There are many important provisions to the lease but we will specifically call attention to several. Paragraph IV obligated the lessee, Aaron Rashti, to erect upon the premises a building for the operation of a bowling alley of 32 lanes or more, a restaurant and a shopping center. The lessee was obligated to start the building not later than April 15, 1959 and to complete the building within six months or else pay a rental even though the building be still under construction. Within nine months or as soon as the bowling alley building be completed, the lessee was obligated to pay a minimum monthly rental in the amount of $500.00. In addition to this minimum monthly rental, the lessee was obligated to pay five percent (5%) of the gross receipts, less the minimum monthly rental. Also in the event lessee should elect to sublet, he would then be required to pay to lessor five percent of any rent derived as result of subletting or subleasing. Paragraph VI obligated lessee to pay all of the ad valorem taxes assessed against the property beginning with the year 1959, although it does not specify when they should be paid. Paragraph VII concerned the options with regard to Tracts 'B' and 'C' and, as originally stated, the option was exercised as to Tract 'B' but not as to Tract 'C'. Such paragraph provided that the rental to be paid on Tract 'B' was $200.00 per month. Paragraph XV gave the lessee the right to assign the lease or to sublet the premises. The lease was for a primary term of 20 years. Paragraph XVII thereof gave the lessee the option to renew the lease for two additional 20 year periods so that the term might be said to have been for 60 years, if the two option periods be considered as included.

Aaron Rashti formed a limited partnership, Forest...