Meyerland Co. v. Palais Royal of Houston, Inc.

• Decision Date: 18 August 1977
• Docket Number: No. 16880,16880
• Citation: 557 S.W.2d 534
• Parties: MEYERLAND COMPANY, Appellant, v. PALAIS ROYAL OF HOUSTON, INC., Appellee.
• Court: Texas Court of Appeals

Page 534

557 S.W.2d 534

MEYERLAND COMPANY, Appellant, v. PALAIS ROYAL OF HOUSTON, INC., Appellee.

No. 16880.

Court of Civil Appeals of Texas, First District.

Aug. 18, 1977.

Fulbright & Jaworski, Jack E. Urquhart, Houston, for appellant.

Hirsch, Westheimer, Block and Wilk, Houston, for appellee; Ernest J. Altgelt, III, Seth Freedman, Houston, of counsel.

COLEMAN, Chief Justice.

This is a suit by a lessor to enjoin the continued use by a lessee of an advertising sign alleged to have been erected in violation of restrictions contained in the lease agreement between the parties. The judgment was entered on a jury verdict. It will be affirmed.

A lease agreement entered into between Meyerland Company, lessor, and Palais Royal of Houston, Inc., lessee, provided that signs erected by the lessee "shall conform to the sign criteria hereinafter set forth and that such signs shall conform with the standards set by the lessor or the shopping center as a whole." Following this provision the lease contains several specific sign restrictions.

Meyerland Company brought this suit seeking injunctive relief on the ground that one of Palais Royal's signs violated the height restrictions.

The cause was submitted to the jury on four special issues, and in answer to the first special issue the jury failed to find that the sign constituted a distinct and substantial breach of the regulations encompassed in the lease agreement. In answer to the second issue submitted the jury failed to find that prior to the erection of the sign in question Meyerland established sign standards for the shopping center as a whole other than those specifically contained in the lease agreement. The remaining issues were conditionally submitted and not answered.

Appellant, plaintiff in the trial court, alleged that the sign in question violated the terms of the lease agreement. Therefore it had the burden of proof on issues one and two submitted by the trial court. On this appeal it is the appellant's burden to show that the evidence conclusively establishes that the sign breached the regulations found in the lease agreement or that it violated an existing standard established for the center as a whole. No evidence or insufficient evidence points are not proper ways to attack unfavorable jury findings on which the appellant has the burden of proof. Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App.-Tyler, 1968, writ ref'd n.r.e.); Weiser v. Hampton, 445 S.W.2d 224 (Tex.Civ.App.-Houston (1st) 1969, writ ref'd n.r.e.). In its brief appellant asserts that the undisputed evidence established that there were sign standards other than those in the lease and that these were violated by Palais Royal. We consider that the points asserted in appellant's brief are to the effect that a breach of the lease agreement is conclusively established under the evidence. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976).

This controversy arose when Palais Royal began preparation to erect a sign on the outside wall of the premises which it leased from Meyerland Company in Meyerland Plaza. The letters "P" and "R" were in excess of eleven feet in height. Mrs. Hess, the manager of Meyerland Plaza, objected to the erection of the sign for the reason that it exceeded the standards provided in the lease contract. When Palais Royal continued with their efforts to erect the sign, this suit was filed.

At the trial Mrs. Hess testified that the lessor had set standards for signs to be erected by lessees in Meyerland Plaza. She stated that no sign could be over four feet in height and occupy more than 80% of the linear frontage of the store. She later stated that what she meant was that the letters in the sign should be no more than four feet in height. She testified that the standards were not reduced to writing. There is no evidence that this particular standard was ever orally communicated to Palais Royal prior to the time that the sign in question was manufactured.

There is evidence that with the exception of TSO, Penney's, and Palais Royal, the other signs that have been erected in the shopping center contain letters approximately 48 inches in height or smaller. There is no clause in the leases with TSO and Kroger's which the lessor can control the size of their signs. Penney's occupies a two story building and its lease authorizes a larger sign.

Palais Royal had previously occupied different premises in the shopping center, and a plat attached to their lease specified that the sign would be 48 inches in height. The signs which they used on those premises were approximately six feet in height, and they were erected with the express permission of the lessor. Mrs. Hess testified that prior to the time that the three story building was constructed and leased to Penney's, the size of signs was controlled by clauses requiring the landlord's consent or by plans and specifications which were attached to the leases. After that time sign criteria were included in the lease agreement.

In the preliminary discussions for a lease agreement conducted by Mrs. Hess with Palais Royal, she furnished Palais Royal certain information concerning the signs under a title reading "Sign Criteria for Entire Premises." The same criteria were included in the lease subsequently executed in Paragraph XXI. ¹

Mr. Fuchs, the Executive Vice President of Palais Royal and chief operating officer, testified that he did not understand that there were any restrictions on the signs facing the parking lot. The only discussion he had concerning the sign criteria was the specific approval given to the size of the signs used on their old premises and the information received from Mrs. Hess previously referred to under the title "Sign Criteria for Entire Premises." Two witnesses were presented by the defendants who qualified as experts in graphic design. They testified that they had inspected the signs that had been erected at Meyerland Plaza to see if they could recognize any overall standard for signs in the center. Each testified that they were not able to discern any standard from visual inspection.

None of the criteria set out in Paragraph 21 of the lease agreement relates to the size of the letters in the sign. The Palais Royal sign in question does not violate any of the criteria set out in the lease agreement. The only one of the criteria relating to the size of signs applied to signs erected on a mall.

Mrs. Hess testified that at one point there was a four foot restriction on the height of signs and at another point there was a four foot restriction on the height of the letters on the signs. There was evidence that the...