Steinberg v. Medical Equipment Rental Services, Inc., 18253

• Decision Date: 24 January 1974
• Docket Number: No. 18253,18253
• Citation: 505 S.W.2d 692
• Parties: Meyer STEINBERG, d/b/a Sher-Den Mall, Appellant, v. MEDICAL EQUIPMENT RENTAL SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

Page 692

505 S.W.2d 692

Meyer STEINBERG, d/b/a Sher-Den Mall, Appellant, v. MEDICAL EQUIPMENT RENTAL SERVICES, INC., Appellee.

No. 18253.

Court of Civil Appeals of Texas Dallas.

Jan. 24, 1974.

Rehearing Denied Feb. 21, 1974.

John D. Hill, Brown & Hill, Sherman, for appellant.

R. C. Slagle, III, Joe M. Joiner, Sherman, for appellee.

CLAUDE WILLIAMS, Chief Justice.

This appeal is from a judgment awarding damages for constructive eviction from leased premises and denying recovery for claimed delinquent lease payments. Finding some evidence to support the jury's findings of constructive eviction we affirm the judgment.

Medical Equipment Rental Services, Inc. brought this action against Meyer Steinberg, individually and doing business as Sher-Den Mall, in which it was alleged that on June 23, 1970 plaintiff and defendant had executed and entered into a contract in which defendant leased to plaintiff certain premises situated in the City of Sherman, Grayson County, Texas, and being a part of a shopping mall. Plaintiff alleged that for the purpose of inducing it to enter into the lease agreement the defendant, through its agents, represented to the plaintiff that the defendant would, immediately upon execution of said lease by plaintiff, design, prepare and install any and all business signs necessary for plaintiff's business since such business was not located in the regular mall area. It was alleged that plaintiff advised the defendant and its agents that unless such signs would be erected it would not execute the lease; that plaintiff relied upon said representations and guaranties by defendant, and its agents, and believed such representations to be true at the time it executed the lease. Plaintiff further alleged that at the time such representation was made that defendant did not have any intent or purpose to comply with such agreement and representations and that it did thereafter refuse and fail to design, prepare and install such advertising signs, making it impossible for plaintiff to operate his business in a reasonable and profitable manner; that the wrongful and fraudulent actions of defendant forced and compelled plaintiff to move his business to another location.

As a further part of its cause of action plaintiff alleged that defendant represented to plaintiff that the leased premises would be suitable for plaintiff's business; that on many occasions defendant allowed trucks and other vehicles to park in front of plaintiff's premises for long periods of time to load and unload merchandise and other items for other tenants; that defendant permitted garbage and trash to accumulate in the mall area which interfered with the normal use of the leased premises by plaintiff; that the acts and conduct of the defendant disturbed, obstructed, hindered and interrupted the plaintiff's use of the demised premises and that such premises were rendered untenantable. Plaintiff alleged that as a result of such conduct on the part of defendant the plaintiff was constructively evicted from the premises. Plaintiff enumerated certain items of damages resulting from the constructive eviction. He prayed for judgment awarding him these damages.

By way of counter-claim Meyer Steinberg sought a judgment against Medical Equipment Rental Services, Inc. for rent due under the lease and praying that the lease agreement be adjudicated as valid, subsisting and in full force and effect.

Steinberg filed his motion for partial summary judgment which was considered by the court and overruled.

At the conclusion of plaintiff's evidence and again at the conclusion of defendant's evidence Steinberg presented his motion for instructed verdict in which he alleged that there was no evidence of fraud or constructive eviction. These motions were overruled.

The court submitted the case to the jury on special issues and in response thereto the jury found (1) that prior to the execution of the lease agreement Steinberg, acting through his agents, represented to Medical Equipment Rental Services, Inc., that immediately upon execution of the lease defendant would design, prepare and install any and all business signs necessary for plaintiff's business; (2) that said representation was made by defendant to plaintiff as a material inducement to plaintiff signing the lease; (3) that said representation was made as a statement of fact; (4) that such representation was false; (5) that plaintiff relied upon said representation in executing the lease agreement; (6) that plaintiff would not have signed the lease agreement if such representation had not been made. Answering special issues 15--17 the jury found that Steinberg, through his agents, allowed the premises adjacent to plaintiff's business to be used for purposes that made plaintiff's leased premises unsuitable for his business; that such conduct of Steinberg was such as to interfere materially and permanently with the beneficial use of the premises by plaintiff; and that plaintiff moved from the premises as a result of such conduct on the part of defendant. In special issues 18 and 19 the jury found damages in the total amount of $1,600. The court rendered judgment for Medical Equipment Rental Services, Inc. against Meyer Steinberg for that amount. The judgment denied Steinberg any recovery by virtue of his counter-claim. In twenty-seven points of error appellant seeks reversal of this judgment. We will consider these points in the order in which they are presented.

In his first point of error appellant asserts that the trial court erred in not granting his motion for partial summary judgment. This point is overruled for the reason that the order of the trial court overruling a motion for partial summary judgment is interlocutory and therefore not appealable. The judgment complained of in this appeal was rendered following a trial on the merits. In such a posture the case is not one where we may properly consider a point complaining of the trial court's refusal to grant a partial summary judgment. Dyche v. Simmons, 264 S.W.2d 208 (Tex.Civ.App.--Fort Worth 1954, writ ref'd n.r.e.); Stewart v. Lomax, 395 S.W.2d 82 (Tex.Civ.App.--Corpus Christi 1965, writ ref'd n.r.e.); City of Shamrock v. Hrnciar, 453 S.W.2d 898 (Tex.Civ.App.--Eastland 1970, writ ref'd n.r.e.); West Texas Equipment Co. v. Walker, 417 S.W.2d 864 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.); Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955). We are not here presented with the situation where both parties file a motion for summary judgment and the court sustains one motion and overrules the other. In such a case the appellate court may properly review the trial court's action on both orders. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966); Triplett v. Shield, 406 S.W.2d 941 (Tex.Civ.App.--Eastland 1966, writ ref'd n.r.e.).

In his second, third, fourth and fifth points of error appellant complains of the action of the trial court in overruling his special exceptions directed to the allegations of fraud contained in plaintiff's second amended original petition. These points are overruled for the reason that the record fails to disclose that the special exceptions were properly called to the court's attention and overruled by the court by signed written order. Any complaint directed to the action of the court in overruling special exceptions is therefore waived.

However, we have considered the pleadings to which the special exceptions were directed and find that the trial court would not have been in error by overruling them. Appellee properly pleaded each of the essential elements of fraud which it asserted...