Mangum Road Center v. Disclafani

• Decision Date: 10 December 1969
• Docket Number: No. 232,232
• Citation: 450 S.W.2d 130
• Parties: MANGUM ROAD CENTER et al., Appellants, v. Peter DISCLAFANI, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 130

450 S.W.2d 130

MANGUM ROAD CENTER et al., Appellants, v. Peter DISCLAFANI, Appellee.

No. 232.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 10, 1969.

Rehearing Denied Jan. 14, 1970.

C. B. Stephenson, Schlanger, Cook & Cohn, Houston, for appellants.

Karl E. Kraft, Bobbitt & Kraft, Houston, for appellee.

TUNKS, Chief Justice.

In August of 1961, James C. McMinn, J. Frederick Welling and Anthony Luciano, doing business as a partnership under the name of Mangum Road Center, were in the process of building a shopping center on Mangum Road in the City of Houston, Texas. At that date some of the improvements had been finished and were occupied. Others were in various stages of construction. Since that date Anthony Luciano has died and the ownership of the shopping center has been transferred to Marie Felbinger. She, McMinn and Welling were plaintiffs and cross-defendants in the trial court. Those parties will sometimes be called the 'lessors.'

Peter DiSclafani was the defendant and cross-plaintiff in the trial court. We will sometimes be called 'the lessee.' In August of 1961 he had just received his license as a dentist and was looking for an office in which to conduct his practice. He entered into negotiations with Anthony Luciano which negotiations culminated in the execution of a lease contract under which Peter DiSclafani was to occupy the space in the shopping center for a term of five years. At the time of the negotiations the space to be occupied by DiSclafani had not been finished and the negotiations included discussions as to such matters as the location of the partitions in the finishing of the space so as to make is adaptable to the use contemplated. It was later finished in accordance with the specifications agreed on and the lessee moved in about October 15, 1961.

The lessee continued to occupy the leased premises until March 31, 1962 at which time he vacated them under the circumstances hereafter discussed. The lease provided for a rental of $200 per month for the first 24 months and $235 per month thereafter for the remainder of the term. The total rent paid by the lessee was $400. After the lessee's abandonment of the premises the lessors took possession and tried to relet them. They were able to rent them only for a short period of time during which they received a total rental of $140. The lessors filed this suit seeking recovery of the balance due them under the lease. The lessee answered denying liability because of fraudulent inducement to his execution of the lease and because of faulty construction of the building. The lessee also filed a cross-action by which he sought a recovery of damages sustained by him because of the alleged faulty construction.

The case was tried to a jury. On the verdict received the trial court rendered judgment that the plaintiffs, lessors, take nothing by their suit for rent under the lease, for cancellation of the lease and that cross-plaintiff, lessee, take nothing by this cross-action for damages allegedly caused by faulty construction. The jury findings were adverse to the lessee insofar as they related to his defense and cross-action based upon faulty construction. No appeal has been taken from the judgment on the cross-action. The plaintiffs, lessors, have appealed from the adverse judgment on their suit for rents under the lease. Under the circumstances we need take no further note of that phase of the case relating to the alleged faulty construction and may concern ourselves with only that phase of the case relating to the alleged fraudulent inducement.

The pertinent allegations of the defendant lessee as to fraudulent inducement are to the effect that during the negotiations leading up to the execution of the lease Anthony Luciano told him 'that a substantial part of the yet uncompleted section would be occupied by a large drug store,' and that the building 'would be completed within a short time.' It was alleged that 'such representations were made to Defendant and others as statements of fact and for the purpose of inducing Defendant to lease the premises in question.' There were further allegations that the statements were false, that they were made to induce defendant to execute the lease, that he relied on them in executing the lease and that they were material inducement. There was no allegation that Luciano knew the statements were false when he made them.

At the time the lessee vacated the premises, and in fact, up to the time of the trial, the building had not been completed and none of it was occupied by a drugstore. The plaintiffs', lessors', primary case was established without any conflict and no issues were submitted with reference thereto. All of the issues submitted had to do with the lessee's affirmative defenses and his cross-action.

Special Issue No. 1 submitted to the jury was in the following language:

'SPECIAL ISSUE NO. 1

'Do you find from a preponderance of the evidence that Anthony Luciano represented to Peter Disclafani that the owners had a commitment that there would be a large drug store located in Mangum Road Center Building within a reasonable time?'

This issue was followed by other issues as to falsity, purpose of inducement, reliance and materiality of inducement. All were answered favorably to the lessee.

Special Issue No. 6 submitted to the jury was in the following language:

'SPECIAL ISSUE NO. 6

'Do you find from a preponderance of the evidence that Anthony Luciano represented to Peter DiSclafani as a then existing fact that the Mangum Road Center Building would be completed in the neat future?'

This issue was followed by the same related issues as those submitted in relation to Special Issue No. 1. There was no issue inquiring as to whether Luciano knew the falsity of the statement at the time of making it.

By points of error the appellant takes the position that the defense submitted to the jury in Special Issue No. 1 through No. 5 was not raised by the pleadings. Those points of error are sustained. The word 'commitment' as used in the context in which it is used in Special Issue No. 1 is defined in Webster's New International Dictionary, unabridged, as:

'The obligation or pledge to carry out some action or policy * * * an engagement by contract or purchase order to assume a financial obligation * * *.'

The lessee's pleading, the pertinent language of which is set out above, cannot be construed as an allegation that Luciano represented that the owners had a 'commitment'--a contract, an engagement or some other form of obligation--pursuant to which a drugstore would be located in the shopping center. The allegation can be construed only as one to the effect that Luciano said that the owners intended, expected, anticipated or were of the opinion that there would be a drugstore in the shopping center in the future. The two meanings are substantially different. To say that the owners have a commitment is a statement of an existing fact which does not require an inquiry into the state of the mind of the speaker in order to determine its truth or falsity. To say that something will occur in the future usually means only that the speaker is of the opinion that it will so occur and is a statement of an existing fact only that it implies the existence of such opinion in the speaker's mind. Its truth or falsity can be determined only by inquiry into the statement of the mind of the speaker. Harris v. Sanderson, Tex.Civ.App., 178 S.W.2d 315, writ ref., w.o.m.; Texas Farm Bureau Cotton Ass'n. v. Craddock, Tex.Civ.App., 285 S.W. 949, writ ref.

It is error for the court to submit issues as to, and to base its judgment upon, an affirmative defense not raised by the pleadings of the defendant. Parker v. Gulf C. & S.F. Ry. Co., Tex.Civ.App., 401 S.W.2d 265, no writ hist.; Schodts v. American Hospital & Life Ins. Co., Tex.Civ.App., 313 S.W.2d 946, writ ref., n.r.e.; Rules 67, 279 and 301, T.R.C.P.

In the submission of issues the trial court is not required to follow the exact language of the pleadings. Rhodes v. Liberty Welding Works, Tex.Civ.App., 391 S.W.2d 796, writ ref., n.r.e. However, the language of Special Issue No. 1 in this case was so significantly different from the language of the defendant's pleading that the court erred in submitting it over objection.

Other of appellant's points of error contend that there was no evidence upon which to base the jury's finding to Special Issues 1 through 5. Those points of error, too, are sustained.

The testimony of the lessee relating to the representation inquired about in Special Issue No. 1 was that Luciano told him 'that the end-space (space of the building to be built) was going to be a drugstore by one of the large major chains.' He had talked...