Pizza Inn, Incorporated v. Bob Clairday ( 2020 )

Case: 19-11302 Document: 00515627097 Page: 1 Date Filed: 11/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 4, 2020
No. 19-11302
Lyle W. Cayce
Clerk
Pizza Inn, Incorporated,
Plaintiff—Appellant,
versus
Bob Clairday,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:18-CV-221
Before Smith, Clement, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Bob Clairday and Pizza Inn had a contract. Clairday held an option to
renew it but failed timely to notify Pizza Inn that he wished to do so. Pizza
Inn did not honor the tardy notice of renewal and did not renew. A jury
awarded damages after finding that Pizza Inn had breached the contract.
Determining that the notice of renewal was sufficiently timely under the
doctrine of equitable intervention, the district court upheld the verdict and
awarded Clairday attorneys’ fees. Pizza Inn challenges (1) the application of
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the equitable-intervention doctrine, (2) the damages award, and (3) the
award of fees. Because the district court applied the equitable-intervention
doctrine incorrectly, we reverse and render judgment for Pizza Inn.
I.
Pizza Inn is a restaurant chain formed in Texas in 1958. In the early
1970s, it began franchising its restaurants. Clairday started as a franchisee of
Pizza Inn in 1974 and, in 1992, entered into two “Area Development Agree-
ments” under which Pizza Inn named Clairday an Area Developer in ex-
change for $1,250,000.
As an area developer, Clairday was responsible for recruiting and
developing Pizza Inn franchises within his assigned territory, which included
Arkansas and parts of Missouri, Oklahoma, and Texas. For his efforts to
develop that territory, Clairday was entitled to half of the royalty payments
from the franchises. The Area Development Agreements were for an initial
term of twenty years and granted Clairday two five-year renewal options.
Each agreement contained a notice-of-renewal requirement, which read, “If
Area Developer desires to exercise its renewal option, Area Developer shall
deliver written notice of its intention to renew to Company not less than six
months prior to the expiration of the current term of this Agreement.”
Clairday timely notified Pizza Inn of his intention to renew for the first
option period; the present disagreement arises out of the second option per-
iod. It is undisputed that Clairday notified Pizza Inn of his intent to renew on
August 3, 2017—roughly four months before the term was set to expire in
December and, thus, two months after renewal notice was due. In December,
Pizza Inn decided not to renew for the second five-year period. It immedi-
ately sued, seeking declaratory judgment. Clairday counterclaimed, assert-
ing, among other causes of action, breach of contract.
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Following a two-day trial, the jury returned a verdict for Clairday and
awarded him lost-profits damages of $250,000 for breach of contract. The
parties stipulated, however, that the jury would not determine whether Clair-
day’s renewal notice on the second option was sufficiently timely. Instead,
they agreed that the district court would make that decision based on the trial
record and any supplemental evidence. Applying the doctrine of equitable
intervention, the district court excused Clairday’s failure to notify timely,
upheld the verdict, and awarded Clairday $80,257 in attorneys’ fees.
Pizza Inn appeals on three grounds. First, it asserts that equitable
intervention is inapplicable. Second, it contests the propriety of the lost-
profits damages. Finally, it avers that the district court erred in awarding
attorneys’ fees.
II.
Pizza Inn asserts that the district court erred when, applying equitable
intervention, it excused Clairday’s failure to notify Pizza Inn of his intention
to exercise his option in a timely fashion. We agree. Because strict compli-
ance with the agreement does not result in unconscionable hardship, equita-
ble intervention is inapplicable, so we reverse.
The general rule under Texas law is that “an optionee is held to a strict
compliance with the terms of the option agreement.” Zeidman v. Davis,
342 S.W.2d 555, 558 (Tex. 1961). Even still, that rule “is not an absolutely
inflexible one,” Jones v. Gibbs, 130 S.W.2d 265, 272 (Tex. 1939), but is sub-
ject to a “narrow equitable exception,” In re Eldercare Props. Ltd., 568 F.3d
506, 522 (5th Cir. 2009). A failure to comply strictly may be excused where
it “was not due to willful or gross negligence . . . but was rather the result of
an honest and justifiable mistake.” Jones, 130 S.W.2d at 273. In such cases,
a court sitting in equity may excuse a party’s failure to comply strictly in order
to “prevent . . . unconscionable hardship.” Id.
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From Jones, later courts derived a three-part test1 to the effect that
equitable intervention applies when “[1] the delay has been slight, [2] the loss
to the lessor small, and [3] when not to grant relief would result in such hard-
ship to the tenant as to make it unconscionable to enforce literally the con-
dition precedent of the lease.” Id. at 272 (quoting F.B. Fountain Co. v. Stein,
118 A. 47, 50 (Conn. 1922)). In those circumstances, Texas courts may apply
the “narrow equitable exception to the rule of strict enforcement.” Eldercare,
568 F.3d at 522 (emphasis added).2
1
See, e.g., Eldercare, 568 F.3d at 521 (“In our estimation, the Jones court clearly
intended to reach the issue of equitable intervention, and to base its disposition on that
ground. In so doing, it adopted the three-factor F.B. Fountain Co. test for cases of mere
neglect.”); Alamo Wurzbach Commercial Props., Ltd. v. Royal Pizza, Inc., No. 04-98-00637-
CV, 1999 WL 511511, at *4 (Tex. App.─San Antonio July 21, 1999, pet. denied); Crown
Constr. Co. v. Huddleston, 961 S.W.2d 552, 558 (Tex. App.—San Antonio 1997, no pet.);
Wy-Ed Invs., LP v. Cannon, No. 11-95-380-CV, 1997 WL 33804118, at *2 (Tex. App.—
Eastland Jan. 2, 1997, no writ); Inn of the Hills, Ltd. v. Schulgen & Kaiser, 723 S.W.2d 299,
301 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.); Cattle Feeders, Inc. v. Jordan,
549 S.W.2d 29, 32–33 (Tex. App.—Corpus Christi 1977, no writ). But see Reynolds-Penland
Co. v. Hexter & Lobello, 567 S.W.2d 237, 240–41 (Tex. App.—Dallas 1978, writ dism’d by
agr.) (dismissing the rule in Jones as dicta and refusing to apply it).
2
We emphasize just how “narrow” an exception it is. Since its inception in Jones,
the parties collectively point to only two cases in which equitable intervention was applied
to forgive strict compliance with the terms of a renewal agreement in cases of mere neglect.
See Eldercare, 568 F.3d at 524; Inn of the Hills, 723 S.W.2d at 302. The court finds one
more, an unpublished opinion from the Texas Court of Appeals. Cannon, 1997 WL
33804118, at *1; see also Buffalo Pipeline Co. v. Bell, 694 S.W.2d 592 at 598–99 (Tex. App.—
Corpus Christi 1985, writ ref’d n.r.e.) (applying Jones to prevent forfeiture, but failing to
articulate clearly whether it was doing so on the basis of lessee’s negligence or on the les-
sor’s failure to act timely on the lease’s expiration). But cf. Sirtex Oil Indus., Inc. v. Erigan,
403 S.W.2d 784, 787–88 (Tex. 1966) (applying the doctrine of inequitable forfeiture to
prevent forfeiture where a lessee failed timely to pay rent, which represents an analogous,
but distinct, line of Texas caselaw). Equitable intervention is the exception—strict
enforcement remains the rule.
Moreover, as far as we can tell, the doctrine has never been applied beyond the
context of a lease agreement. Whether it is applicable at all to a contract such as the one at
issue here is an open question. But because neither party addressed it, and because we
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A.
We assume that Clairday’s delay was sufficiently slight and the loss
to Pizza Inn sufficiently small. We focus instead on whether requiring strict
compliance results in “unconscionable hardship.” Jones, 130 S.W.2d at 273.
It doesn’t.
“Texas courts have determined that [‘unconscionable’] carries no
precise legal definition.” Besteman v. Pitcock, 272 S.W.3d 777, 787 (Tex.
App.—Texarkana 2008, no pet.). Although not defined precisely, “[u]ncon-
scionability tends to exist when certain, rather extreme, factors are involved
in a contract.” Id. at 789. And “proving unconscionability” presents a “high
threshold” per a “strong policy favoring the freedom of contract.” Id.
In option contracts, unconscionable results arise typically in the form
of a “loss of improvements or tangible assets.” Casa El Sol-Acapulco, S.A. v.
Fontenot, 919 S.W.2d 709, 714 (Tex. App.─Houston [14th Dist.] 1996, writ
dism’d by agr.). For example, in Jones, the court did not require strict com-
pliance with the renewal option because the defendants had “paid the pur-
chase price for all of the timber” but had “removed less than one-third of it.”
Jones, 130 S.W.2d at 269. Thus, to enforce strictly the renewal agreement
would have caused the defendants “to lose the value of more than two-thirds
of the timber for which they paid.” Id. at 273.
The same principle compelled the outcome in Inn of the Hills. The
plaintiff purchased a Texaco distributorship and bulk plant, both of which sat
on property subject to a long-term lease with several five-year renewal peri-
ods. Inn of the Hills, 723 S.W.2d at 300. Just like the defendant in Jones, the
plaintiff in Inn of the Hills had “paid the purchase price,” Jones, 130 S.W.2d
determine the doctrine to be inapplicable to the present case in any event, we leave that
question for another day.
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at 269, for the distributorship and bulk plant in reliance on the continued exis-
tence of the lease.3 To require strict compliance with the renewal require-
ments, therefore, would have resulted in “the unconscionable loss of [that]
investment[,]” which was “made in reliance upon the option.” Fontenot,
919 S.W.2d at 716 (citing Inn of the Hills, 723 S.W.2d at 301).
Eldercare is no different. This court invoked the doctrine of equitable
intervention where ElderCare had invested $300,000 “for the sole purpose
of reorganizing the business, which necessarily depended on the option being
exercised and the Lease extended.” Eldercare, 568 F.3d at 523 (cleaned up).
Enforcing strictly the renewal requirement, then, would have resulted in the
forfeiture of that investment, which was made in reliance on the renewal
option and the termination of Eldercare Properties, Ltd., as a viable corporate
entity.
B.
Clairday asserts three hardships that, in his view, make it uncon-
scionable to enforce the renewal deadline strictly: “a partial forfeiture of a
$1,250,000 purchase price, a forfeiture of future profits . . . , and the shut-
tering of a Pizza Inn franchise store.” We address each in turn.
The first hardship—the “forfeited” portion of Clairday’s initial
$1,250,000 investment—is unconvincing. It’s not a forfeiture. “Ordinarily,
the doctrine of inequitable forfeiture is not applied to cases involving option
contracts, because the option holder rarely stands to lose more than his power
to exercise the option.” Fontenot, 919 S.W.2d at 714. That is because “[t]he
option holder has paid consideration for a legal power with a specified period
3
Inn of the Hills, 723 S.W.2d at 300 (“Plaintiff would not have purchased the dis-
tributorship and the bulk plant without the inclusion of the lease with an unexpired term of
13 years.”); see also Fontenot, 919 S.W.2d at 716 (describing Inn of the Hills’s holding).
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of life.” Id. at 714 n.2 (citation omitted). “When that time expires, the
option holder has received the full agreed equivalent of the price he paid for
his option; and a refusal to give effect to an acceptance that is one minute late
results in no forfeiture.” Id. at 716 n.6 (citation omitted).
To be sure, it “may be different . . . in the case of a lease with an option
to . . . renew. In such cases the lessee may make extensive and valuable
improvements in expectation of exercising his power to buy or to renew.” Id.
at 714 n.2. Where such improvements have been made, equity may compel
a court to prevent their forfeiture. Id. Although this case does not involve a
lease, it is nonetheless conceivable that Clairday might have relied detrimen-
tally on his renewal expectation such that it would be unconscionable to
require strict compliance. For example, had he invested in inventory or
equipment in reliance on the option, the loss of those “tangible assets” might
properly be considered for purposes of unconscionability. Id. at 714.
But that is not the case before us. Instead, Clairday paid for two rights.
First, he purchased the right to be an area developer for the first twenty
years—a right that he indisputably received. Second, he bought the right to
exercise two five-year options. And when the second option period expired
without Clairday’s timely exercising it, he “ha[d] received the full agreed
equivalent of the price he paid for his option.” Id. at 716 n.6 (citation omit-
ted). Thus, Clairday lost no “more than his power to exercise the option”
and did not forfeit any of the initial purchase price. Id. at 714.
The next hardship to which Clairday points—“a forfeiture of future
profits”—is similarly unavailing. True, lost profits, unlike Clairday’s “for-
feited” investment, represent an actual loss. But that doesn’t make the situa-
tion unconscionable. Unconscionability arises in “extreme” circumstances,
such as “to prevent oppression and unfair surprise . . . , when there is a gross
disparity in the values exchanged,” or where the “inequity . . . is so extreme
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as to shock the conscience.” Besteman, 272 S.W.3d at 789 (cleaned up).
Losing the opportunity to turn a profit, at least in the mine-run of cases, does
not shock the conscience.
Moreover, if lost profits alone constitute an “unconscionable hard-
ship” then the “narrow” Jones exception has swallowed the rule. Unless a
plaintiff sued to enforce an unprofitable contract, the third Jones factor would
be satisfied in every case. If the delay was slight and the loss to the optionor
small, equitable intervention would forgive any failure to comply strictly with
the terms of an option agreement. We decline to stretch Texas’s “narrow
equitable exception” to such expanse. Eldercare, 568 F.3d at 522.
Clairday’s final asserted hardship—shuttering a Pizza Inn franchise
store—also falls short of the “high threshold [he] must meet [to] prov[e]
unconscionability.” Besteman, 272 S.W.3d at 789. Clairday testified that, as
a result of Pizza Inn’s decision not to renew, he “started looking at cutting
overhead.” To that end, he closed one of his franchised stores in Arkansas.
That store was a distinct entity, not associated with the Area Developer
Agreements. In fact, the only mention in the agreements of franchised res-
taurants independently owned by an Area Developer is to state explicitly that
any such restaurants would be subject to their own contracts.
The only connection between the franchised store and the agreements
is that Clairday (through different corporations) and Pizza Inn were involved
in both—as franchisor/franchisee in one and licensor/licensee in the other.
That attenuated connection is insufficient to attach the store’s closure to
Pizza Inn’s decision not to renew the agreements.4
4
Cf. AZZ Inc. v. Morgan, 462 S.W.3d 284, 289 (Tex. App.—Fort Worth 2015, no
pet.) (“[C]onsequential damages are generally not recoverable unless the parties con-
templated at the time they made the contract that such damages would be a probable result
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Because Clairday did not suffer an unconscionable hardship, the dis-
trict court erred in its application of the equitable-intervention doctrine.
That compels the conclusion that the court similarly erred in awarding attor-
neys’ fees. Tex. Civ. Prac. & Rem. Code § 38.001. And, for obvious
reasons, we need not address the propriety of the damages calculation. We
REVERSE and RENDER judgment for Pizza Inn.
of the breach.”).
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