McKenzie v. Positive Action Int'l, Inc.
| Decision Date | 26 April 2012 |
| Docket Number | NO. 01-10-01073-CV,01-10-01073-CV |
| Parties | MARY GRET MCKENZIE D/B/A GEN'S ANTIQUES AND MARY GRET MCKENZIE, Appellants v. POSITIVE ACTION INTERNATIONAL, INC. D/B/A GRACE HART & COMPANY, Appellee |
| Court | Texas Court of Appeals |
This case arises from a dispute between a lessee and its commercial landlord. Appellants, Mary Gret McKenzie d/b/a Gen's Antiques and Mary Gret McKenzie (collectively, "Gen's Antiques"), leased retail spaces in an antiques mallfrom appellee, Positive Action International, Inc. d/b/a Grace Hart & Co. ("Hart & Co."). Gen's Antiques alleged multiple causes of action, including constructive eviction and breach of contract, and Hart & Co. alleged a counterclaim for breach of contract. The jury returned a verdict in favor of Hart & Co. Following a series of post-trial rulings, the trial court entered a final modified judgment ordering that both parties take nothing. In eight points of error, Gen's Antiques argues that: (1) the jury's findings that Hart & Co. did not constructively evict it and did not breach the leases were erroneous because "there was overwhelming and uncontroverted evidence" against those findings; (2) the trial court erred in denying its motion for judgment notwithstanding the verdict on its constructive eviction and breach of contract claims; (3) the jury's adverse finding on its breach of contract claim was also improper because Hart & Co.'s failure to pay Gen's Antiques its sales proceeds constituted a breach of the leases; (4) the jury's finding that Hart & Co. did not breach an oral agreement was incorrect because Hart & Co. failed to pay Gen's Antiques its sales proceeds; (5) the jury erred in failing to award damages on its constructive eviction, breach of lease, and breach of oral agreement claims; (6) the trial court erred in refusing a jury question on its breach of trust claim; (7) the jury erred in failing to award it attorney's fees based on its claims of breach of written and oral contracts; and (8) the trial court erred in denying its motion for new trial based on improper jury argument.
Hart & Co. asserts five cross-points, arguing that the trial court: (1) erred in entering judgment that it take nothing based on the argument that "no live pleading" supported its recovery for breach of contract and attorney's fees; (2) abused its discretion in finding "no live pleadings"; (3) erred in modifying the judgment based on an issue not objected to at trial and therefore waived by Gen's Antiques; (4) erred in modifying the judgment based on an issue not presented in a motion for new trial and therefore waived by Gen's Antiques; and (5) abused its discretion in exercising plenary power to modify the judgment based on an issue not presented in a motion for new trial.
We affirm in part and reverse and remand in part for the trial court to render judgment on the jury's verdict.
Hart & Co. operated an antiques mall and leased spaces to various merchants for the sale of antiques and collectibles. Gen's Antiques leased space consisting of four booths and two window spaces and paid the related security deposits consisting of one month's rent. Gen's Antiques also signed a lease and paid a security deposit for two more desirable window spaces that it planned to move into in February 2008.
In addition to providing the terms of booth location, rent, and permissible uses of the premises, the leases included the following terms relevant to this case:
(Emphasis in original).
Exhibit A, attached to the lease and expressly incorporated into the terms of the lease, provided general policies regarding specific deadlines and late fees for paying rent, the number of days the lessee is required to work at the antique mall and related policies, guidelines for proper maintenance of the space, and store hours. It also provided that lessees like Gen's Antiques were required to conductall sales through the "front desk at Grace Hart & Co.," but it did not provide specific procedures for the reimbursement of payments made to Hart & Co. for the lessee's merchandise.
This suit arose from a dispute that occurred on December 11, 2007. Gen's Antiques argues that Grace Hart, president of Hart & Co., became irrational and told McKenzie and her business partner, Gregory Nolte, to leave the premises and never come back. Hart & Co. argues that McKenzie is the one who became angry and chose to leave the mall without giving notice as required by the leases.
The December 17, 2007 letter went on to inform McKenzie and Nolte that "your inappropriate and uncalled for actions . . . will no longer be tolerated." They were advised not to enter the premises under any circumstances or confront, make comment to, or interfere with any employees, dealers, or patrons. The letter concluded:
Your recent conduct and acts of slander and/or libel have already resulted in an actionable cause of action against you for monetary and punitive damages. Your theft and misuse of the confidential business records of Grace Hart & Co. will result in criminal charges being filed against you personally under all applicable criminal statutes and laws that apply in Harris County, in the City of Houston, in the State of Texas or in the United States.
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