Estes v. Wilson

• Decision Date: 27 December 1984
• Docket Number: No. 2-84-019-CV,2-84-019-CV
• Citation: 682 S.W.2d 711
• Parties: Aubrey Joyce ESTES, Jr., aka Jay Davis, Appellant, v. Marie Marsh Degler McKinney WILSON, Appellee.
• Court: Texas Court of Appeals

Page 711

682 S.W.2d 711

Aubrey Joyce ESTES, Jr., aka Jay Davis, Appellant, v. Marie Marsh Degler McKinney WILSON, Appellee.

No. 2-84-019-CV.

Court of Appeals of Texas Fort Worth.

Dec. 27, 1984.

Royce Coleman, Denton, for appellant.

Michael E. Robinson, Dallas, for appellee.

Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.

OPINION

FENDER, Chief Justice.

The judgment appealed in this case awarded possession, title, reimbursement of taxes, and lost rents to appellee, Marie Marsh Degler McKinney Wilson, the lessor under a lease agreement with option to purchase. Appellant, Aubrey Joyce Estes, Jr., aka Jay Davis, the lessee and plaintiff below, was denied any recovery in his asserted causes of action for declaratory judgment, specific performance of the option to purchase provisions of the agreement, and attorney's fees.

We affirm.

Appellant's first four points of error are directed at the trial court's action in "forfeiting Appellant's interest in" the lease-purchase agreement without giving him the opportunity to cure any default in his performance under the agreement, for forfeiting his interest in the agreement for failure to pay taxes and failure to keep insurance with the same carrier previously used by appellee-lessor, and for forfeiting his interest in the agreement by sub-leasing without consent of appellee. Points of error four, five, six and seven attack the award of lost rents to appellee and denial of "affirmative relief" and attorney's fees to appellant.

On May 9, 1974, appellant (sometimes referred to herein as "Estes") and appellee, (sometimes referred to as "Wilson") executed an instrument on a printed form for lease which contained an option to purchase. This instrument will be called the "lease-purchase agreement." It is copied in relevant part below:

Lessor hereby declares that there is no indebtedness or liens of any kind on said property and that she is the sole owner of said property and further agrees not to incur any debt on said property during the terms of this lease-purchase option.

Lessor also declares that there are no taxes of any kind now due on said property.

Lessee agrees carry (sic) the same Insurance on said Property meaning same Company and same Coverage until a Purchase Option has been exercised.

Lessee agrees that if rents are not paid on or before the 15th of each Month beginning the 15th day of May, 1974 this agreement shall become null and void and lessee will have five days to vacate said Property. If this agreement does become null and void there will be no liability each party to the other.

LESSEE is also tendering $4,000.00, receipt of which is hereby acknowledged, for an option to purchase the location for the price of $25,000.00 with all option money and all rent being credited to the purchase. The lease shall be for the term of fifteen (15) years beginning the 15th day of May, A.D. 1974, and ending the 15th day of May, 1989, to be occupied [illegible] and not otherwise, Lessee [illegible] therefor the sum of $200.69 per month as rent; that all rent paid shall be, at any time the option is exercised, credited to principal and interest payments. LESSEE shall pay all taxes and insurance. All Taxes and Insurance shall be prorated from May 15, 1974.

If Purchase Option is excercised (sic) said Note shall bear an 8% rate per annum.

LESSEE shall have the right to sell, transfer or convey this lease purchase option at anytime during the term of this agreement if he so desires, said transfer must meet with Lessor's approval.

According to Wilson, this remarkable instrument was devised so that appellant's name would not appear of record as owner of the property, where it might aggravate the problems which Estes was having with the I.R.S.

In his brief, appellant admits that he "sublet the premises, that a small amount of taxes did not get timely paid and that insurance was always in force but not with the same insurance company formerly insuring the Defendant." As to the subletting however, appellant contends that appellee waived her right to complain. The claimed waiver is based upon the fact that on June 24, 1980, she wrote him a letter On May 13, 1981, Wilson filed suit in the district court asking for declaratory judgment and "voiding" of the lease-agreement. That suit was dismissed without prejudice on May 10, 1982, the day set for trial, upon motion of Wilson. On September 7, 1982, Wilson's attorney wrote Estes advising that the lease was terminated due to his failure to pay taxes on the premises and to supply insurance coverage as agreed. The present suit was brought by Estes on October 4, 1982.

stating that he had rendered the contract "Null and Void" by not paying rent on time, subletting the premises and failing to keep the premises in good repair, but that she continued to accept payments until June of 1982.

In his amended petition, Estes alleged that he was and had been "ready, willing and able to comply with whatever the terms of the 'AGREEMENT' are, whether it be his interpretation or some other interpretation." In this regard he prayed that his option be enforced and that Wilson be required to convey and that he, Estes, be required to give "an appropriate note secured by Deed of Trust." Additionally, he pled a cause of action for damages due to wrongful prosecution. That cause of action went out of the case by directed verdict, from which action of the court, no appeal has been taken.

With regard to appellant's claim of waiver on Wilson's part, the jury found that he sublet the property to tenants without Wilson's consent, and further found that Wilson did not waive her rights to require approval prior to such subletting. In spite of such findings, appellant contends that waiver occurred as a matter of law.

It has been established by Texas law that waiver is a question of fact for the trier of fact to determine. See Andrews v. Powell, 242 S.W.2d 656; Marsalis v. Thomas, 13 Tex.Civ.App. 54, 35 S.W. 795 (Tex.Civ.App.1896, writ ref'd); Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App.--Fort Worth 1946, writ dism'd); Carlisle v. MacDonald, 200 S.W.2d 436 (Tex.Civ.App.--Texarkana 1947), rev'd on other grounds, 146 Tex. 206, 206 S.W.2d 224. It has been held that waiver must be clearly proven and that the proof must amount to more than a scintilla of evidence, surmise or suspicion. Jordan v. City of Beaumont, 337 S.W.2d 115 (Tex.Civ.App.--Beaumont 1960, writ ref'd n.r.e.); The Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Comm'n App.1933, judgment adopted).

The evidence established that, despite acceptance of payments that were due, Wilson continued to take steps to evict appellant, thus making it clear that acceptance of any payments was not to be construed as a waiver of her rights. The Texas courts have long held that the accepted definition of waiver is an intentional relinquishment or surrender of a right that is at the time known to the party making it. The Praetorians v. Strickland, supra; Moore v. Price, 103 S.W. 234 (Tex.Civ.App.1907, writ ref'd n.r.e.).

The court stated in Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644 (Tex.Civ.App.--Dallas 1960, writ ref'd n.r.e.): "Intention is a necessary element of waiver as distinguished from estoppel, ..."

Wilson testified that at no time did she intend to waive any of her rights in regard to the real property and lease agreement. By appellant's own admission in his pleadings, Wilson continuously complained of the subletting and continuously notified Appellant of her objections. It is an established rule of law that to prove an implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party showing a purpose or acts which amount to an estoppel on his part. Corrin v. Slagle, 300 S.W.2d 657 (Tex.Civ.App.--Fort Worth 1957, writ ref'd n.r.e.).

The cases cited by appellant for the proposition that "waiver" occurred as a matter of law are all clearly distinguishable from the case at bar. Apperson v. Shofner, 351 S.W.2d 367 (Tex.Civ.App.--Waco 1961, no writ), for example, is a suit between a lessee and his sublessor in which the landlord testified that he orally waived It has been held that a material fact issue is created where a landlord knows of and accepts payments after a sublease has occurred, but it is imminently clear that this is a fact question, which was resolved by the jury in Wilson's favor.

the consent requirement when the sublessor took the property.

"It is well settled, and appellees agree, that the rights accruing to a lessor under the provisions of Article 5237 may be waived. Nelson v. Seidel, (Tex.Civ.App.), 328 S.W.2d 805, (Refused, NRE), and cases cited therein. The question which then presents itself is whether or not appellants have presented sufficient evidence to raise an issue of a material fact. ... In our opinion this raises a fact issue as to whether or not the executors relinquished their right to cancel the lease contracts. This is an issue which should be passed upon by a trier of the facts." Bradley v. Gray's Estate, 385 S.W.2d 681 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.).

Regarding the admitted non-payment of taxes and the failure to keep the premises insured by the same insurance company, there were no special issues submitted to the jury, however the trial court ruled that Wilson recover the sum of $379.11 for taxes which Estes should have paid.

Appellant argues that the trial court could not properly find a forfeiture of the lease because of his failure to pay taxes and to retain the same insurance with the same insurance carrier. He admits that some taxes were not paid and that, although he kept the premises properly insured, it was impossible to retain the same carrier since that company declined to reinsure the premises at the end of the policy term. Appellant testified that Wilson caused the insurer to cancel coverage and Wilson testified that it was appellant's fault for letting the premises become run down and...