Tempo Tamers, Inc. v. Crow-Houston Four, Ltd.
Decision Date | 12 February 1986 |
Docket Number | CROW-HOUSTON,No. 05-84-00972-CV,05-84-00972-CV |
Citation | 715 S.W.2d 658 |
Parties | TEMPO TAMERS, INC., Don, Inc., Furrh, Inc., and Donald G. Furrh, Appellants, v.FOUR, LTD. and David T. Lancaster, Appellees. |
Court | Texas Court of Appeals |
George C. Black, Jr., Randy Roberts, Dallas, for appellants.
J. Chris Roberts, Dallas, for appellees.
Before AKIN, GUILLOT and HOWELL, JJ.
This litigation stems from a dispute between Tempo Tamers, Inc., and its landlord, Crow-Houston Four, Ltd., over Tempo's right to erect its sign in a shopping center parking lot. Tempo sued Crow for constructive eviction, misrepresentation, and wrongful sequestration. It also sued David T. Lancaster for breaching several warranties associated with the sale of the nightclub and his stock in Tempo. Crow sought to recover lost rents from Tempo and damages from Tempo, Don, Inc., Furrh, Inc., and Donald G. Furrh for removing six air conditioners from the shopping center. Also, Lancaster brought an action against Furrh, Inc., and Donald Furrh for the unpaid balance of a promissory note which he received in exchange for his stock.
The trial court refused to submit any issues concerning misrepresentation by Crow and two of the three warranties that Tempo claimed were breached by Lancaster. The trial court also entered an instructed verdict denying Tempo's wrongful sequestration claim. On the remaining issues, the jury answered in favor of Lancaster and Crow, and the trial court rendered judgment accordingly.
Donald Furrh and his corporations appeal, contending that the trial court erred in its jury charge, in entering the instructed verdict, and in allowing Crow to recover rents and attorney's fees. They also contend that the trial court erred when it admitted hearsay evidence concerning the amount of Crow's damages, allowed Crow to introduce evidence of tax benefits to Tempo, refused to permit Tempo to introduce evidence that it obtained injunctive relief against Crow, and permitted Crow to read from Tempo's superseded pleadings. We agree that the trial court should have excluded Crow's evidence concerning the amount of damages caused by the removal of the air conditioners. Accordingly, the trial court's judgment is affirmed in part, and reversed and rendered in part.
Lancaster opened and briefly operated a nightclub in a Houston shopping center, a location which he leased from Crow. Another tenant had erected two poles in the parking lot of the shopping center to display its sign. Although the poles were considered an appurtenance of that tenant's location in the shopping center, Lancaster asked Crow whether he could place a sign for his nightclub on these poles. Crow's agent told him to contact the tenant who "owned" the poles. While he had installed four other signs, Lancaster wanted a sign on these poles because it faced a nearby thoroughfare. Lancaster obtained the right to use the poles and erected his sign. However, he failed to obtain Crow's written approval of the sign as required under his lease. Nevertheless, Crow did not complain of the sign at that time.
Lancaster incorporated Tempo to operate the nightclub and then sold the club and his stock to Furrh, Inc. for, in part, a promissory note secured by Donald Furrh's personal guaranty. In the interim, the tenant who installed the poles closed its business and another business took possession under the previous tenant's lease. When the successor complained, Crow demanded that Tempo remove the sign on the ground that it had not obtained Crow's written approval. When Tempo refused, the illuminated sign was removed temporarily and, ultimately, the electricity was disconnected.
Claiming that it could not attract enough customers to stay in business without this lighted sign, Tempo closed its nightclub, vacated the shopping center, and sued Crow for constructive eviction. It also sued Lancaster for breaching his warranty that he owned the poles and for other misrepresentations not germane to this opinion. Discovering that Tempo removed the air conditioners which serviced its space in the shopping center, Crow obtained a writ of sequestration to recover them. Tempo claimed that, under the lease, the air conditioners were movable trade fixtures and, thus, were its property.
To prove the amount of damages caused by the removal of the air conditioners, Crow introduced the invoices for reinstalling the units and for rewiring them. The only predicate for admitting these documents was testimony from the manager of the shopping center that he recognized the documents as "bills" from the air conditioning company and the electricians. The trial court overruled Tempo's hearsay objection and admitted them for the sole purpose of showing "the amount that [Crow] paid," expressly stating that they were not to be considered as evidencing a reasonable cost of repair. In response to the special issue inquiring what amount of money would "reasonably compensate" Crow for the removal of the air conditioners, the jury answered "$4,702.33," the sum of both invoices. The jury also found that Crow was entitled to five-hundred dollars in exemplary damages.
Tempo does not complain of Crow's failure to prove that $4,702.33 was a reasonable cost of necessary repairs. Instead, it insists that the invoices were inadmissible hearsay evidence. Crow responds that, because the "testimony of the [l]andlord's witness as to the fact of payment was not hearsay," the invoices were admissible. Crow misstates the record. The witness never testified that he paid the amount demanded in the invoices. Instead, he only stated that they were "bills." The only reference to payment came from the trial court in its ruling that the invoices were admissible to show the "amount ... paid." Of course, this statement is not evidence and cannot, as Crow would have it, supply a requisite for admissibility. Thus, we cannot agree with Crow that the invoices were not hearsay.
Under the Rules of Evidence, a statement is hearsay if it is made by someone other than the witness while testifying, if it is offered to prove the truth of the matter explicitly or impliedly asserted, and if the probative value of the statement results from the declarant's belief of the matter asserted. See Tex.R.Evid. 801(c), (d). The "matter asserted" in the invoices is the declarant's belief, based on the items reflected in the invoice, that the cost of repair was the amount stated in the invoice. Because the declarant never testified at trial, the invoices were hearsay and, therefore, inadmissible unless qualified as a business record or admitted under some other exception to the rule against hearsay. Tex.R.Evid. 802. Absent testimony that Crow paid this amount to repair the air conditioners or an applicable exception, the trial court erred in admitting the invoices as evidence of the cost of repair. See Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 442 P.2d 641, 648, 69 Cal.Rptr. 561, 568 (1968); Santangelo v. Capitol Home Planners, 424 So.2d 1214, 1215 (La.Ct.App.1982).
Having determined that the trial court ruled erroneously, we must next determine the appropriate remedy for this error. Without asserting a "no evidence" point, Tempo argues that the jury's award is not supported by any probative evidence. The record contains no other evidence concerning the amount of damages for this ground of recovery. Thus, we must decide whether the hearsay evidence admitted over a timely objection constitutes more than a scintilla of evidence concerning the amount of damages.
In Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941), the supreme court held that hearsay has no probative value. Since the promulgation of rule 802 this statement no longer controls when hearsay is admitted without objection. Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.) (hearsay entered into evidence without objection is now probative). The rule stated in Lee still applies, however, when hearsay is admitted over an appropriate objection. Therefore, the invoices were without probative value.
Because no probative evidence supports the jury's answer concerning the amount of Crow's damages, we reverse and render that portion of the trial court's judgment awarding actual damages to Crow for the removal of the air conditioners. See Richardson v. Green, 677 S.W.2d 497, 501-502 (Tex.1984). Further, even though Tempo does not present a point of error attacking the award of exemplary damages, we must delete this item of recovery as well. Crow may not recover exemplary damages when it is not entitled to recover actual damages. Lone Star Steel Co. v. Wahl, 636 S.W.2d 217, 222 (Tex.App.--Texarkana 1982, no writ).
With respect to Tempo's cause of action for constructive eviction, it complains that the trial court should have permitted it to introduce evidence that it obtained a temporary injunction to prevent Crow from interfering with its sign. In support of this point, Tempo directs us to the order granting Crow's motion in limine and its bill of exception. Although this bill shows what the evidence would have been, nothing in the record suggests that the matters contained in the bill were tendered into evidence.
Tempo may not predicate a point of error upon granting a motion in limine because this order is not a final ruling on the evidence. Bifano v. Young, 665 S.W.2d 536, 541 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). A motion in limine merely precludes reference to the subject of the motion without first obtaining a ruling on the admissibility of those matters outside the presence of the jury. See Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). Therefore, to be entitled to complain on appeal that the trial court erroneously...
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