The Atrium v. Kenwin Shops of Crockett, Inc.

• Decision Date: 26 January 1984
• Docket Number: No. A14-82-765CV,A14-82-765CV
• Parties: THE ATRIUM, Appellant, v. KENWIN SHOPS OF CROCKETT, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 315

666 S.W.2d 315

THE ATRIUM, Appellant, v. KENWIN SHOPS OF CROCKETT, INC., Appellee.

No. A14-82-765CV.

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

Jan. 26, 1984.

Rehearing Denied March 8, 1984.

Paul Kruse, Betts & Kruse, Brenham, for appellant.

Stephen P. Wright, Ross, Banks, May Cron & Cavin, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

DRAUGHN, Justice.

This case involves summary judgments sought by both parties in a retail lease dispute. The Atrium Partnership (appellant or lessor) appeals from a summary judgment granted to Kenwin Shops of Crockett, Inc. (appellee or tenant). Appellant claims that the trial court erred both in granting appellee's motion for summary judgment and in not granting its own motion for summary judgment. We conclude that neither summary judgment was proper because there are material issues of fact to be decided. The judgment is reversed and the cause remanded.

This dispute concerns retail space which the tenant leased in 1976 for a term of five years to September 30, 1981, with an option to renew for an additional five years. In January, 1980, lessor purchased the building in which this space was located. Lessor thereafter planned to do extensive renovation in the building and requested that tenant relocate after completion to a newly renovated area of the building. Appellee agreed, and the parties evidenced their discussions in this matter by a "letter agreement" dated February 22, 1980. The disputed portion of this agreement stated that the agreement between appellant and appellee would be "null and void" if appellee's new portion of the building was not fully completed so that the tenant could move in and commence business by August 31, 1980. The space was not completed by that date. In fact, appellant was not able to move from the old space to the new until approximately six months later on March 9, 1981. Six months after moving into the new space, on September 9, 1981, the tenant tendered, and the lessor accepted, the additional rental specified under the letter agreement of February 22, 1980. In October, 1981, lessor first expressed doubt as to the validity of the letter agreement. Then, in March of 1982, Lessor filed a petition for declaratory judgment, requesting that the court declare the letter agreement to be null and void as called for by its literal terms. In response, tenant claimed that the lessor ratified the agreement and was estopped from asserting the "null and void" provisions since it had accepted the increased rentals and permitted tenant to occupy the renovated premises. Lessor filed a motion for summary judgment on the contract. Tenant, in turn, opposed it and filed its motion for summary judgment based on affirmative defenses. The court ruled that any conditions in the agreement had been waived and that the parties had ratified the contract by their continuing course of conduct.

Appellant-lessor now complains that the trial court erred in refusing to grant its motion for summary judgment; and, likewise, by granting that of appellee-tenant. In this regard, when dual summary judgment motions are before the trial court, who grants one and overrules the other, then we may, of course, determine on appeal the propriety of the court's ruling on each. See Crystal City Indep. School Dist. v. Crawford, 612 S.W.2d 73, 74 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.). See also Hittner, Summary Judgments in Texas, 35 Baylor L.Rev. 207, 226-27 (1983). Here, the summary judgment motions are interdependent. The lessor's involves a question of law; the tenant's, primarily a question of fact. More specifically, lessor's motion for summary judgment is based on a strictly legal interpretation of an unambiguous contractual clause which provides that the contract will be null and void on the happening of a certain event. Without more, lessor's summary judgment would prevail because the event occurred. Its survival is, however, dependent upon the outcome of tenant's motion for summary judgment, which concerns affirmative defenses to the concerned contractual clause. These defenses are waiver, estoppel, and ratification, and they must be established by favorable fact findings in a regular trial. However, in order for these defenses to prevail in a summary judgment proceeding, as here, the court must find that they are conclusively established as a matter of law. We disagree with the trial court's so finding here, and hold that tenant's summary judgment evidence was not conclusive, but merely raised fact questions sufficient to defeat lessor's motion for summary judgment.

While the law is clear that the moving party must establish as a matter of law that there are no genuine issues of fact in order to uphold a summary judgment,...