Ray L. Foster v. Sam LeComte ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00180-CV
RAY L. FOSTER APPELLANT
V.
SAM LECOMTE APPELLEE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-70577-431
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MEMORANDUM OPINION 1
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Appellant Ray L. Foster leased a hangar to Appellee Sam LeComte.
LeComte let a friend store a Winnebago RV in the hangar, and the hangar
caught fire because of a problem with the Winnebago’s electrical system. The
fire significantly damaged or destroyed the hangar. LeComte refused to pay the
damages Foster requested, so Foster sued him for more than $50,000. Foster
1
See Tex. R. App. P. 47.4.
now appeals from an adverse summary judgment granted in favor of LeComte.
Because Foster does not challenge every summary judgment ground raised by
LeComte, we affirm the trial court’s judgment.
The leased hangar was located in Roanoke, Texas. The term of the lease
was from August 1, 2007 through July 31, 2008. In May 2008, LeComte allowed
James Carley (Carley) to store his Winnebago in the hangar. LeComte did not
charge Carley rent and did not enter into a sublease with Carley. On June 7,
2008, Carley stored two additional vehicles—racecars—in the hangar. That
evening, a fire occurred inside the hangar. An expert later determined that a
failure of the Winnebago’s electrical system caused the fire. The fire resulted in
significant structural damage to the hangar, but the parties disagreed on the
extent of the damage. LeComte offered to pay for the slab, with no building on it,
for $20,000 to $30,000. Foster wanted more.
Foster sued LeComte, contending that LeComte had breached the lease
by (1) failing to return the property in the same condition as when he took
possession, (2) failing to indemnify Foster, (3) committing waste on the premises,
and (4) failing to keep the leased premises free of highly flammable products.
Foster challenges the summary judgment only as to the first claim.
In his live petition, Foster relied in part on section seven of the lease:
7. Acceptance and Surrender of Premises. Lessee agrees to
accept the premises in possession as being in a good state of repair
and in sanitary condition. Lessee agrees to surrender the premises
to Lessor at the end of the lease term, if the lease is not renewed, in
the same condition as when Lessee took possession, allowing for
2
reasonable use and wear and damages by acts of God, including
fire and storms.
In one of his affirmative defenses, LeComte asserted
that pursuant to Paragraph 7 of the lease between [Foster] and
[LeComte], [LeComte was] required to surrender the premises to
[Foster] “at the end of the lease term, if the lease [were] not
renewed, in the same condition, as when [LeComte] took
possession, allowing for reasonable use and wear and damages by
acts of God, including fire and storms.” Thus, [LeComte] should not
be liable, since [Foster’s] claim is based on a fire, which is
specifically excepted by the lease.
Subsequently, LeComte moved for summary judgment on traditional and
no-evidence grounds. In the traditional portion of his motion, LeComte argued
that he did not breach the lease provisions requiring a return of the leased
property in the same condition because (1) he could only be liable for breaching
the contract if his negligence or that of his invitee caused the damage, but Foster
had not alleged negligence and was time-barred from doing so, and (2) the lease
allowed for damages by acts of God, and those included accidental fire and
storms. Alternatively, LeComte argued (1) that even if Foster had pled
negligence, LeComte did not breach the contract because he did not negligently
cause the fire that destroyed the hangar and (2) that even if Foster had pled
negligence and had proved that LeComte breached his duty of ordinary care,
such alleged breach did not proximately cause Foster’s damages because there
was no cause in fact or foreseeability. In the no-evidence portion of his motion,
LeComte argued that there was no evidence to support the necessary elements
of Foster’s claims for breach of contract.
3
In his response to LeComte’s motion, Foster argued incorrectly that
LeComte had not alleged that the fire was an act of God or reasonable wear and
tear that would except him from returning the premises in the same condition.
Foster also filed a motion for traditional summary judgment, in which he
contended that LeComte breached the contract by committing waste, failing to
indemnify Foster for any and all damages caused by LeComte and his licensees,
and failing to return the hangar in the same condition as it was when he originally
received it. The trial court denied Foster’s motion and granted LeComte’s motion
without specifying the grounds on which the motion was granted.
Foster now appeals but does not challenge the summary judgment
regarding indemnification or his claims of waste and presence of flammable
materials.
In his first issue, Foster asserts that the trial court erred by granting
summary judgment for LeComte because LeComte failed to establish, as a
matter of law, that he did not breach the lease.
LeComte contended in his second amended answer that he should not be
liable because Foster’s “claim is base[d] on a fire, which is specifically excepted
by the lease.” And in LeComte’s motion for summary judgment, he stated,
It is clear that the provisions in the Lease between Plaintiff and
Defendant that Plaintiff allowed for reasonable use and wear and
damages by acts of God, and those included fire and storms. This
language tracks Texas law, which merely requires the lessee to take
ordinary, reasonable care of the property during the term of the
lease.
4
Foster’s sole argument on appeal is that the trial court incorrectly
construed the language in paragraph 7 of the lease; Foster contends that the
correct interpretation of paragraph 7 is that LeComte was obligated to repair the
property to its pre-lease condition no matter what the cause of any damage. But
this interpretation directly conflicts with the qualifying phrase in paragraph 7,
“allowing for . . . damages by acts of God, including fire and storms.” 2 In his
brief, Foster does not address what an act of God is or is not. Because Foster
does not challenge on appeal LeComte’s ground that he could not have
breached the lease because the fire was an accidental act of God under
paragraph 7 of the lease, we must overrule Foster’s first issue and affirm the
summary judgment for LeComte. 3 Additionally, because we have determined
that Foster’s asserted interpretation of paragraph 7—that LeComte was obligated
to repair the property to its pre-lease condition no matter what––which Foster
relied on in his motion for summary judgment and brief, is incorrect, we overrule
his second issue.
Having overruled Foster’s two issues, we affirm the trial court’s judgment.
2
See, e.g., Hooks v. Samson Lone Star, Ltd. P’ship, 457 S.W.3d 52, 63
(Tex. 2015) (citing well-established law that, as with other contracts, we construe
a lease with reference to the document as a whole, attempting to “harmonize all
contractual provisions”).
3
See Wilson v. Andrews, No. 02-06-00429-CV, 2007 WL 2460356, at *2
(Tex. App.––Fort Worth Aug. 31, 2007, pet. denied) (mem. op.) (affirming
summary judgment on unchallenged affirmative defense of statute of frauds
solely because appellants did not assign error on issue).
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/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
GABRIEL, J., filed a dissenting opinion.
DELIVERED: July 30, 2015
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