Llyasah Dupree Dba 360 Degrees Beauty Academy v. Boniuk Interests, Ltd , 2015 Tex. App. LEXIS 8151 ( 2015 )

Opinion issued August 4, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00864-CV
———————————
LLYASAH DUPREE D/B/A 360 DEGREE BEAUTY ACADEMY, Appellant
V.
BONIUK INTERESTS, LTD., Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2013-40231
OPINION
In this commercial lease dispute, Llyasah Dupree, d/b/a 360 Degree Beauty
Academy (“Dupree”), sued her landlord, Boniuk Interests, Ltd. (“Boniuk”), for
several causes of action, including breach of lease and fraud. Boniuk
counterclaimed and alleged that Dupree had breached both her lease and a
promissory note that she had entered into with Boniuk. After a bench trial, the trial
court rendered a take-nothing judgment against Dupree on her claims and awarded
Boniuk $119,665.45 in damages on its claims, plus pre- and post-judgment
interest, costs, and $15,000 in attorney’s fees. In four issues, Dupree contends:
(1) the trial court erroneously considered parol evidence to construe the terms of an
unambiguous promissory note; (2) insufficient evidence supports the trial court’s
finding that she breached her lease obligations because she presented evidence that
she tendered rental payments to Boniuk and Boniuk did not deposit those rental
payments; (3) an amendment to the lease was invalid because it was not supported
by additional consideration; and (4) the trial court erroneously failed to rule that
Boniuk had committed fraud when it offered into evidence business records that it
acknowledged contained inaccuracies.
We affirm.
Background
In September 2007, Boniuk and Dupree entered into a written lease
agreement (“the Lease”) in which Boniuk leased space in a commercial shopping
center in northwest Houston to Dupree for use as a beauty and cosmetology school.
The initial lease term was for eighty-four months, and the Lease provided that rent
payments would begin in January 2008. The Lease required Dupree to pay $700
2
per month in rent for the first three months of the lease term, $1,400 per month for
months four through seven, $5,000 per month for months eight through twenty-
four, and $6,000 per month for the remainder of the initial term (“the Minimum
Rent”). The Lease also required Dupree to pay, beginning in the eighth month of
the lease term, an additional $1,323 per month for common area maintenance,
taxes, insurance, and utilities (“the Additional Rent”). Thus, Dupree agreed to pay
Boniuk a total of $700 per month for months one through three, $1,400 per month
for months four through seven, $6,323 per month for months eight through twenty-
four, and $7,323 per month for the remainder of the initial lease term.
The Lease also included a provision stating, “In the event said monthly
payment shall not have been paid by the fifteenth (15 th) day of the month, then
Tenant shall be in default,” and a provision stating, “It is covenanted and agreed
that if (a) Tenant shall fail to pay any installment of Rental or other monetary
charge due to Landlord hereunder within ten (10) days of its due date . . . Landlord
lawfully may, immediately, or at any time thereafter, and without demand or
notice, enter into and upon the said Premises or any part thereof in the name of the
whole and repossess the same . . . .”
In January 2008, Boniuk was in the process of re-roofing the shopping
center when a storm further damaged the roof and rainwater flooded the premises,
causing damage to the premises itself, as well as to Dupree’s business personal
3
property. After several months of negotiations with Boniuk concerning repairs to
the property, Dupree had lost most of her students at the school, and she needed
assistance to continue to meet her rental obligations.
On September 26, 2008, Boniuk and Dupree signed a written amendment to
the lease “to help relieve [Dupree] of some of the payments” (“the Amendment”).
The Amendment included the following provisions:
1. Landlord agrees to abate the rent for the months of September
2008, October 2008, and November 2008.
2. Landlord agrees to defer $3,000.00 per month of rent for the
months of December 2008, January 2009, February 2009[,] and
March 2009, which deferment Tenant agrees to pay back by
adding $500.00 per month to the full rental obligation
beginning in October 2009 (the “Payback Obligation”) as stated
in #4 below.
3. The full monthly rental obligation including Minimum Rent
and all Additional Rent (CAM, Taxes, Insurance, late charges,
etc.) as defined in the Lease shall be paid by Tenant beginning
April 1, 2009.
4. Tenant shall begin payments on its Payback Obligation
beginning October 1, 2009 and continuing for twenty-four (24)
months. Starting with the October 2009 rental payment, Tenant
shall add $500.00 per month to the monthly rental obligation, as
defined in the Lease; being Minimum Rent plus all Additional
Rent (CAM, Taxes, Insurance, late charges, etc.)
Dupree testified that, under this Amendment, Boniuk agreed to temporarily reduce
her rent and defer a part of her rental obligations so she could remain a tenant. The
Amendment also included provisions releasing all claims between the parties that
existed as of the date of the Amendment and specifying that the original Lease, as
4
modified, remained in effect. The Amendment also modified the due date for
rental payments, the late rent date, and the default date and provided that rent was
due on or before the tenth day of the month, that rent was considered late if not
received by the fifteenth of the month, and that Dupree was in default for non-
payment of rent if Boniuk did not receive the rent by the twentieth day of the
month.
Despite the Amendment, Dupree continued to struggle to make the rental
payments. Toward the end of 2009, Dupree requested that she start the new year,
2010, with a zero balance owed on her Lease to be able to show a more favorable
debt-income business ratio so she could continue participating in a federal funding
program for her school. She approached Boniuk to discuss ways to restructure
their arrangement on the Lease to reduce her outstanding balance. By December
2009, Dupree owed Boniuk $41,499 on the Lease.
On December 18, 2009, Dupree paid Boniuk $20,000 in the form of a
cashier’s check and executed a promissory note (“Note”) in favor of Boniuk in the
principal amount of $21,499. The Note provided:
The Principal Amount and interest are due and payable in sixty (60)
equal monthly installments of FOUR HUNDRED FORTY AND
00/100 DOLLARS ($440.00), on the first day of each month,
beginning February 1, 2010, and continuing until the expiration of
sixty (60) months from the date of this note, when the entire amount
of principal and accrued, unpaid interest will be payable in full.
Payments will be applied first to accrued interest and the remainder to
reduction of the Principal Amount.
5
Borrower promises to pay to the order of Lender the Principal
Amount plus interest at the Annual Interest Rate. This note is payable
at the Place for Payment and according to the Terms of Payment. All
unpaid amounts are due by the Maturity Date. After maturity,
Borrower promises to pay any unpaid principal balance plus interest at
the Annual Interest Rate on Matured, Unpaid Amounts.
The Note also included a provision that in the event Boniuk did not receive an
installment payment it could take back possession of the premises and accelerate
payment of the principal and accrued interest. David Boniuk, Boniuk’s general
partner, testified that aside from her new obligations under the Note, Dupree did
not have an outstanding balance as of January 1, 2010.
Dupree testified that she entered into the Note in an attempt to raise capital.
She stated that she was to receive $21,499 in cash under the Note, but Boniuk
never paid her any portion of that amount. She acknowledged that she only made
three payments under the Note, but she stated that she stopped making payments
because Boniuk never paid her the principal amount of the Note. Dupree classified
the Note as a personal loan and stated that it had “nothing to do with the business.”
On cross-examination of David Boniuk, Dupree’s counsel asked whether the
principal amount of $21,499 was ever paid to Dupree. David Boniuk responded,
“It was placed against her account; so [it was] effectively paid to her.” He also
testified that the amount was credited to her account “[i]mmediately upon signing
the note.” David Boniuk also testified on direct examination concerning the
6
creation of the Note, which was done to assist Dupree with her participation in a
federal funding program. He testified that Boniuk could not completely forgive
her outstanding balance, which was more than $41,000 at that point in time, but it
could bring her balance down to zero with a combination of its acceptance of a
cashier’s check from Dupree for $20,000 and Dupree’s execution of a promissory
note for the remaining balance. Dupree did not object to David Boniuk’s
testimony concerning the Note on parol evidence grounds or on any other basis.
During Dupree’s cross-examination, Boniuk’s counsel referenced a record of
Dupree’s payment history on the Lease for 2010 and 2011, which was labeled as
Exhibit D3. Counsel for Boniuk stated that Exhibit D3 was “not 100 percent
accurate in its accounting” and that it contained “a mistake in our accounting and I
will say that up front.” Shortly thereafter, Boniuk’s counsel formally offered
Exhibit D3 into evidence. Dupree’s counsel stated, “That is our exhibit. No
objection.” The trial court admitted the exhibit. The parties again discussed
Exhibit D3 several times during the testimony of David Boniuk, who reiterated that
Exhibit D3 contained some inaccuracies.1 Dupree never objected to Exhibit D3 on
any basis.
Dupree acknowledged that Exhibit D3 showed sporadic payments during
2010 with no payments in March, May, July, November, and December. The trial
1
David Boniuk testified that, for example, Exhibit D3 did not reflect the credit to
Dupree’s account as a result of the Note.
7
court also admitted copies of rental checks from Dupree that Boniuk had deposited,
as well as copies of rental checks that Boniuk received from Dupree but did not
deposit because Dupree had placed notes on the checks requesting that Boniuk not
deposit the checks until she confirmed that her bank account had sufficient funds.
For example, the checks for a portion of the rent for May 2010 and the entire June
2010 rental amount, both dated June 9, 2010, included a note stating, “Hello,
Please hold these checks until we receive our draw down disbursements[.] It is
suppose[d] to be approve[d] at the end of this month. I’m hoping it will clear no
later than the 1st week in August. I will call you as soon as they inform me.” The
exhibit reflected that Boniuk deposited these two checks on August 4, 2010, and
August 7, 2010, respectively. The rental checks for August, September, October,
November, and December 2010, all included similar notes requesting that Boniuk
not deposit the checks until Dupree called to confirm they would clear. Dupree
acknowledged that she signed the checks and that her bookkeeper sent them to
Boniuk with notes requesting that it wait to deposit the checks, but she also
testified that she later told Boniuk to cash the checks and that she had asked
Boniuk why it continued to hold onto the checks and not deposit them. She
testified that when she submitted rent payments to Boniuk, she had funds available
to make those payments.
8
David Boniuk testified that, under the Lease, if the tenant submits a rent
check with a note requesting that Boniuk not deposit it, Boniuk has the right to
ignore the note and deposit the check anyway. When asked by Dupree’s counsel to
explain why Boniuk would hold several checks and not deposit them even though
it had the right to ignore the tenant’s attached note, David Boniuk stated that if a
tenant writes such a note, “it’s because they don’t have the money,” and if Boniuk
deposits the check anyway and it bounces, “that’s not going to do anybody any
good.” David Boniuk testified that the checks for August through December 2010
all included notes requesting that Boniuk wait to deposit the checks and that
Boniuk never deposited those particular checks.
On January 11, 2011, Boniuk sent Dupree a notice of default under the Note.
Specifically, the notice informed Dupree that she had defaulted by failing to make
payments under the Note from May 2010 through January 2011 and demanded that
Dupree pay her outstanding balance of $4,356. The notice also informed Dupree
that if she did not cure her default within ten days, Boniuk intended to accelerate
the Note and demand payment of the outstanding principal balance and accrued but
unpaid interest in full. Dupree did not make any further payments under the Note.
After Dupree failed to make payments under the Note and failed to make
rental payments in full under the Lease, Boniuk changed the locks on the premises
on March 11, 2011. David Boniuk testified that, as of that date, Dupree owed
9
Boniuk approximately $45,000. Dupree filed a writ of re-entry in the justice court
on March 22, 2011, and the justice of the peace held a hearing two days later. The
justice of the peace determined that Boniuk had permissibly locked Dupree out of
the premises.
On March 28, 2011, Boniuk sent Dupree two letters via certified mail
demanding that Dupree pay her outstanding balance of $44,141.95 pursuant to the
Lease and $24,186.06 pursuant to the Note. Dupree did not pay any portion of the
outstanding balances. Boniuk made an additional demand on July 19, 2013, of
$91,168 due under the Lease and $28.497.45 due under the Note. Dupree still did
not pay any portion of the outstanding balances.
Dupree sued Boniuk on July 9, 2013, asserting causes of action for breach of
the Lease, wrongful eviction, retaliatory eviction, reimbursement, fraud, and
violations of the Deceptive Trade Practices Act. As the basis for her fraud claim,
Dupree alleged:
Prior to the signing of the aforesaid lease, the Plaintiff Dupree had
told the Defendant Boniuk that the Plaintiff intended to conduct a
barber and cosmetologist school on the premises. As an inducement
to the Plaintiff to enter into the aforesaid lease, the Defendant falsely
represented to the Plaintiff the premises would be repaired so that
Plaintiff could occupy them and conduct the activities she wished to
so conduct there.
At trial, Dupree pursued only her causes of action for breach of the Lease and
fraud.
10
Boniuk filed a counterclaim against Dupree, alleging causes of action for
breach of the Lease and breach of the Note. Specifically, Boniuk alleged that
Dupree defaulted under the Lease “by failing to pay the rent due” and defaulted
under the Note by “failing to pay the amount due.” Boniuk sought as damages the
unpaid balance under the Lease—$91,168—and the unpaid balance under the
Note—$28,497.45.
After a bench trial, the trial court rendered a take-nothing judgment against
Dupree on her claims. The trial court also awarded Boniuk a total of $119,665.45
in damages on its claims, pre- and post-judgment interest, $15,000 in attorney’s
fees, and court costs.
Dupree requested that the trial court file written findings of fact and
conclusions of law. The trial court filed findings and conclusions, including the
following findings of fact:
1 Boniuk Interests, Ltd (Landlord) and Llyasah M Dupree
(Tenant) entered into a written lease agreement on September
30, 2007, whereby [Boniuk] leased real property . . . to
[Dupree] for use as a beauty cosmetology school and related
activities[.]
2 The lease was for an eighty-four (84) month initial term
commencing on January 28, 2008[.]
3 [Dupree] promised to pay the minimum rent under the Lease,
which was $[700.00] per month (months 1–3), $1,400 per
month (months 4–7), $5,000 per month (months 8–24), and
$6,000 per month (months 25–84)[.] In addition, [Dupree]
agreed to pay the additional charges for Common Area
Maintenance, taxes and insurance, and water/sewer adding an
11
additional $[1,323.00] per month beginning in month 8,
resulting in a total gross rent obligation of $6,323 per month
(months 8–24), and $[7,323.00] per month (months 25–84)[.]
4 The Lease was amended on September 26, 2008[.]
5 [Dupree] entered into possession of the premises, and, despite
[Boniuk’s] full performance of all obligations and conditions of
the lease, [Dupree] failed to pay the rent pursuant to the terms
of the lease[.]
6 Dupree struggled to pay the rental payments at various times
during the time period she occupied the premises[.]
7 During December 2009, Dupree requested that she start the new
year (2010) with a zero ($0) balance so that the business debt-
to-income ratio would look better for the government
auditors[.] Thus, on or about December 18, 2009, [Dupree]
executed and delivered to [Boniuk] a promissory note dated
December 18, 2009, whereby [Dupree] promised to pay to the
order of [Boniuk] the sum of $[21,499.00.]
8 [Dupree] breached the lease by failing to pay rent due and
continued in default despite [Boniuk] giving Llyasah Dupree
notice of default[.]
....
13 [Dupree] defaulted in failing to pay her rental payments when
due[.]
14 The Lease has been breached . . . by failure to pay rent due
under the terms of the lease[.]
....
18 [Dupree] has failed to pay said account to [Boniuk.]
19 That the correct balance due to [Boniuk] for rental payments in
this lawsuit is $91,168[.]00[.]
20 On or about December 18, 2009, . . . [Dupree] executed and
delivered to [Boniuk] a promissory note dated December 18,
2009, whereby [Dupree] promised to pay to the order of
[Boniuk] the sum of $[21,499.00], due and payable in equal
12
monthly installments of $[440.00] from February 1, 2010
through February 1, 2015 . . . .
....
22 Llyasah Dupree made only one payment towards the note,
$[1,452.00] on June 10, 2010[.] Despite [Boniuk’s] demand for
payment from [Dupree] after the note became due and payable,
[Dupree] made only one payment towards the note, $[1,452.00]
on June 10, 2010[.]
23 [Dupree] defaulted in failing to pay her note payments when
due[.]
24 The Note has been breached by failure to pay payment
obligations due under the terms of the note[.]
25 [Boniuk] has requested [Dupree] to pay [Boniuk] those sums
due and owing to [it.]
26 On or about January 11, 2011, [Boniuk] sent notice of default
and intent to accelerate to Llyasah Dupree[.] On or about
March 28, 2011, [Boniuk] accelerated the maturity of the note
and demanded payment of the note in full by Llyasah Dupree,
but no additional payments have been made[.] Finally, on or
about July 19, 2013, [Boniuk] sent demand for payment of the
note in the amount of $[28,497.45.]
27 [Dupree] has failed to pay said account to [Boniuk.]
28 That the correct balance due to [Boniuk] for note payments in
this lawsuit is $[28,497.45.]
....
30 The September 26, 2008 lease amendment abated the rent for
the months of September, October and November 2008[.] It
also deferred $3000 per month of rent for the months of
December, 2008 through March, 2009, with the agreement that
[Dupree] would pay these deferred amounts in increments of
$500 per month for 24 months beginning October, 2009[.] This
amendment also included a mutual release of all claims
between the parties existing at the time of the amendment[.]
13
The trial court also concluded, in one of its conclusions of law, that “[t]he Lease
has been breached for failure to pay rents due to [Boniuk] pursuant to the terms of
the Lease Agreement[. Dupree] defaulted under the Lease by failing to pay the
rent due[.]” The trial court also concluded that “[t]he Note has been breached for
failure to pay principal and interest due to [Boniuk] pursuant to the terms of the
Promissory Note.” This appeal followed.
Sufficiency of Evidence
In her second issue, Dupree contends that the trial court erred in ruling that
she had not tendered her monthly rental payments under the Lease because she
presented evidence that she had tendered rental checks for August through
December 2010. She argues that Boniuk had the authority under the Lease to
deposit the checks and that, if it had deposited the checks and the checks were then
returned for insufficient funds, then Boniuk could argue that she failed to tender
her rental payments. Instead, however, Boniuk “did not deposit the tendered funds
and proceeded straight to eviction, without any evidence that [Dupree’s] tendered
payments were not adequately funded.”
A. Standard of Review
In an appeal from a bench trial, we review a trial court’s findings of fact
under the same sufficiency of evidence standards used when determining whether
sufficient evidence exists to support a jury finding. See Catalina v. Blasdel, 881
14
S.W.2d 295, 297 (Tex. 1994). In a factual sufficiency review, we consider and
weigh all of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per
curiam); Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied). When the appellant challenges an adverse finding on
an issue on which she had the burden of proof at trial, she must demonstrate on
appeal that the adverse finding is against the great weight and preponderance of the
evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per
curiam); Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336
S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When the
appellant challenges an adverse finding on an issue on which she did not have the
burden of proof at trial, we set aside the verdict only if the evidence supporting the
finding is so weak as to make the verdict clearly wrong and manifestly unjust. See
Cain, 709 S.W.2d at 176; Reliant Energy Servs., Inc., 336 S.W.3d at 782.
In a bench trial, the trial court judges the credibility of the witnesses,
determines the weight of testimony, and resolves conflicts and inconsistencies in
the testimony. Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938, 943 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). As long as the evidence presented at
trial falls “within the zone of reasonable disagreement,” we will not substitute our
judgment for that of the fact finder. Id. (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)).
15
We review a trial court’s conclusions of law de novo. See BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Even if we determine
that the trial court made an erroneous conclusion of law, we will not reverse if the
trial court rendered the proper judgment. See id. We uphold conclusions of law if
the judgment can be sustained on any legal theory supported by the evidence.
Merry Homes, 312 S.W.3d at 943 (citing Adams v. H & H Meat Prods., Inc., 41
S.W.3d 762, 769 (Tex. App.—Corpus Christi 2001, no pet.)).
B. Breach of the Lease
The elements of a breach of contract claim are: (1) the existence of a valid
contract; (2) performance or tendered performance by the claimant; (3) breach of
the contract by the defendant; and (4) damages to the claimant resulting from the
breach. Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 213
(Tex. App.—El Paso 2010, pet. denied). A tender is an unconditional offer by a
debtor to pay another a sum not less in amount than that due on a specified debt.
Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 320 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (citing Baucum v. Great Am. Ins.
Co., 370 S.W.2d 863, 866 (Tex. 1963)). A valid and legal tender of money
“consists of the actual production of the funds to pay the debt involved.” Id. The
party making the tender must relinquish possession of the funds under such
circumstances as to enable the party receiving the tender to acquire possession
16
without special effort on its part. Id. Generally, a tender of payment must include
everything to which the creditor is entitled; any less sum is ineffective. Id. The
party asserting a valid tender bears the burden of proving it. Id.
In arguing that she presented evidence that she tendered performance under
the Lease, Dupree focuses on the facts that she gave rental checks to Boniuk for
the months of August through December 2010, that Boniuk had the authority to
deposit the checks under the Lease even if the checks constituted only partial
performance of her rental obligations, that Boniuk did not deposit the checks for
those five months even though it had no evidence that the checks would be
returned for insufficient funds, and that she authorized Boniuk to cash these
checks. Dupree thus argues that the trial court “erred by ruling that [she] had not
tendered the funds for payment of lease payments for the period from August 2010
to December 2010.”
At trial, Dupree acknowledged that when she submitted her rental checks to
Boniuk for the months of August through December 2010, her bookkeeper
attached a note to these checks requesting that Boniuk wait to deposit the checks
until Dupree called to confirm that funds were available. This is not an
“unconditional offer” to pay an amount due on a specified debt and does not
amount to “actual production of the funds to pay the debt involved.” See id.
Instead, Dupree did not make the funds for the rental payments for August through
17
December 2010 immediately available to Boniuk “as to enable the person to whom
[the payments are] tendered, without special effort on [its] part, to acquire
possession” of the funds tendered. See id. We therefore hold that Dupree’s rental
checks for August through December 2010, which included notes requesting that
Boniuk wait to deposit the checks, did not constitute a valid tender of performance
on Dupree’s part for those five months. See id.
We further note that, in its findings of fact and conclusions of law, the trial
court did not make any specific findings concerning whether Dupree tendered
payment for the months of August through December 2010. Instead, the only
findings that the trial court made relevant to the issue of Dupree’s breach of the
Lease are:
8 [Dupree] breached the lease by failing to pay rent due and
continued in default despite [Boniuk] giving Llyasah Dupree
notice of default[.]
....
13 [Dupree] defaulted in failing to pay her rental payments when
due[.]
14 The Lease has been breached . . . by failure to pay rent due
under the terms of the lease[.]
The trial court further concluded, in its conclusions of law, that “[t]he Lease has
been breached for failure to pay rents due to [Boniuk] pursuant to the terms of the
Lease Agreement[. Dupree] defaulted under the Lease by failing to pay the rent
due[.]”
18
Dupree’s rental obligation during 2010 and 2011 under the terms of the
Lease and the Amendment was $6,323 per month. The trial court admitted into
evidence checks submitted by Dupree to Boniuk during 2010 and 2011. In 2011,
Dupree submitted a cashier’s check in the amount of $3,000 on January 20, 2011, a
cashier’s check in the amount of $2,100 on February 19, 2011, and a cashier’s
check in the amount of $900 on February 28, 2011. Dupree therefore did not
timely satisfy her rental obligation for the first three months of 2011. David
Boniuk testified that, at the time Boniuk changed the locks on the premises on
March 10, 2011, Dupree had an outstanding balance of $45,000, an amount far in
excess of the sum of Dupree’s rental payments for August through December
2010. Thus, even if Dupree had properly tendered her rental payments for August
through December 2010, Boniuk presented evidence that Dupree breached the
Lease in other months. Dupree does not challenge any of this evidence on appeal.
We therefore conclude that factually sufficient evidence supports the trial
court’s fact findings that Dupree breached the Lease by failing to pay rental
amounts due. Thus, the trial court did not err by concluding that Dupree had
breached the Lease, that a take-nothing judgment against Dupree was proper on her
19
breach of lease claim, and that Boniuk was entitled to judgment on its breach of
lease claim.2
We overrule Dupree’s second issue.
Consideration of Parol Evidence
In her first issue, Dupree contends that the trial court erroneously considered
parol evidence when construing the terms of the unambiguous Note. Specifically,
Dupree contends that the trial court erred in considering evidence presented by
Boniuk that, instead of Boniuk paying the principal amount of the Note in cash to
Dupree, Dupree received a credit in that amount on her account with Boniuk.
We construe written contracts to give effect to the parties’ intent expressed
in the text of the contract “as understood in light of the facts and circumstances
surrounding the contract’s execution, subject to the limitations of the parol-
evidence rule.” Americo Life, Inc. v. Myer, 440 S.W.3d 18, 22 (Tex. 2014) (citing
Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d
2
We note that, even if Dupree tendered payment of the rental amounts for August
through December 2010, to obtain reversal of the trial court’s judgment on her
own breach-of-lease claim, she must also establish that the trial court’s implied
finding that Boniuk did not breach the Lease was against the great weight and
preponderance of the evidence. See Pagosa Oil & Gas, L.L.C. v. Marrs & Smith
P’ship, 323 S.W.3d 203, 218 (Tex. App.—El Paso 2010, pet. denied) (listing
elements of breach of lease claim); see also Dow Chem. Co. v. Francis, 46 S.W.3d
237, 242 (Tex. 2001) (per curiam) (stating that when appellant challenges
sufficiency of evidence to support adverse finding on which she had burden of
proof at trial, appellant must demonstrate that finding is against great weight and
preponderance of evidence). Dupree makes no such showing or argument on
appeal.
20
462, 469 (Tex. 2011)). When interpreting an integrated writing, the parol-evidence
rule precludes the consideration of evidence that renders a contract ambiguous
when the document, on its face, is capable of a definite legal meaning. Id. (citing
Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731–32 (Tex. 1981)). The parol-
evidence rule does not prohibit the consideration of surrounding facts and
circumstances that inform the contractual text and render it capable of only one
meaning. Id.; Houston Exploration Co., 352 S.W.3d at 469 (“The rule does not
prohibit consideration of surrounding circumstances that inform, rather than vary
from or contradict, the contract text.”). The terms of a promissory note cannot be
contradicted or varied by parol evidence of a manner of payment other than as
expressed in the note. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260
S.W.3d 34, 45 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Dameris v.
Homestead Bank, 495 S.W.2d 52, 54 (Tex. Civ. App.—Houston [1st Dist.] 1973,
no writ)). Parol evidence may be admissible to show collateral, contemporaneous
agreements that are consistent with the underlying agreement to be construed, but
this exception to the general parol evidence rule “does not permit parol evidence
that varies or contradicts either the express terms or the implied terms of the
written agreement.” Id.
21
Here, Dupree and Boniuk executed a promissory note under which Dupree
was responsible for repaying the principal amount of $21,499 to Boniuk. The Note
included the following terms:
Date: December 18, 2009
Borrower: Llyasah M. Dupree
....
Lender: Boniuk Interests, Ltd., a Texas limited partnership
....
Principal Amount: $21,499.00
Annual Interest Rate: Eight Percent (8%)
Maturity Date: February 1, 2014
Annual Interest Rate on Matured, Unpaid Amounts: Fifteen
Percent (15%)
Terms of Payment (principal and interest):
The Principal Amount and interest are due and payable in sixty (60)
equal monthly installments of FOUR HUNDRED FORTY AND
00/100 DOLLARS ($440.00), on the first day of each month,
beginning February 1, 2010 and continuing until the expiration of
sixty (60) months from the date of this note, when the entire amount
of principal and accrued, unpaid interest will be payable in full.
Payments will be applied first to accrued interest and the remainder to
reduction of the Principal Amount.
Borrower promises to pay to the order of Lender the Principal
Amount plus interest at the Annual Interest Rate. This note is payable
at the Place for Payment and according to the Terms of Payment. All
unpaid amounts are due by the Maturity Date. After maturity,
Borrower promises to pay any unpaid principal balance plus interest at
the Annual Interest Rate on Matured, Unpaid Amounts.
....
22
At trial, Dupree acknowledged on direct examination that she only made
three payments under the Note, but she testified that she stopped making payments
because her understanding was that, pursuant to the Note, Boniuk was to pay her
$21,499 in cash, which she would then repay in installments, but Boniuk failed to
pay her the principal amount. She stated that the Note was intended to be a
personal loan to her. David Boniuk testified that Dupree had an outstanding
balance of over $41,000 at the time she executed the Note and that the principal
amount of the Note “was placed against [Dupree’s] account; so [it was] effectively
paid to her.” He stated that Boniuk applied this credit to Dupree’s account
immediately upon signing of the Note.
We conclude that the parol evidence rule does not bar David Boniuk’s
testimony. The Note states only that the principal amount is $21,499 and that
Dupree is to repay that amount in monthly installments of $440 over a period of
sixty months. The Note is silent concerning the manner in which Dupree was to
receive the principal amount, whether in cash—as Dupree testified at trial—or as a
credit against her outstanding balance with Boniuk—as David Boniuk testified.
Regardless of whether she received $21,499 in cash or a $21,499 credit against her
outstanding balance, Dupree received the benefit of the principal amount of
$21,499, as the Note requires. David Boniuk’s testimony that Dupree received the
principal amount of the Note in the form of a credit does not vary or contradict the
23
terms of the Note and, thus, is not barred by the parol evidence rule. See Houston
Exploration Co., 352 S.W.3d at 469; DeClaire, 260 S.W.3d at 45.
We overrule Dupree’s first issue.
Additional Consideration to Support Lease Amendment
In her third issue, Dupree contends that the trial court erred by ruling that the
Amendment to the Lease was valid and legally enforceable because it was not
supported by separate and independent consideration.
A modification to a contract, such as a lease agreement, must itself be
supported by consideration to be valid. See Hathaway v. Gen. Mills, Inc., 711
S.W.2d 227, 228 (Tex. 1986) (“Parties have the power to modify their contracts. A
modification must satisfy the elements of a contract: a meeting of the minds
supported by consideration.”); Hill v. Heritage Res., Inc., 964 S.W.2d 89, 113
(Tex. App.—El Paso 1997, pet. denied) (“To conclude that there was a valid
modification, the jury had to favorably determine two elements. The first is that
the modification is based upon new consideration.”). Consideration may consist of
a benefit that accrues to one party, or, alternatively, a detriment incurred by the
other party. Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 315 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied); see Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 496 (Tex. 1991) (“Consideration is a present exchange
bargained for in return for a promise. It consists of either a benefit to the promisor
24
or a detriment to the promisee. The detriment must induce the making of the
promise, and the promise must induce the incurring of the detriment.”). A promise
to fulfill a pre-existing obligation cannot serve as new consideration for an
amendment to a contract. Walden, 97 S.W.3d at 319.
Here, Dupree argues that she “had a pre-existing duty to pay the amounts
provided for in the alleged amendment to the lease agreement.” She claims that
she “did not provide any new consideration” and that the Amendment was
therefore unenforceable. Boniuk argues that the Amendment was supported by
additional consideration because, in the Amendment, it agreed to abate and defer
several of Dupree’s rental payments in exchange for Dupree remaining a tenant.
We agree with Boniuk.
The parties executed the Amendment to the Lease on September 26, 2008.
The Amendment included the following terms:
1. Landlord agrees to abate the rent for the months of September
2008, October 2008, and November 2008.
2. Landlord agrees to defer $3,000.00 per month of rent for the
months of December 2008, January 2009, February 2009 and
March 2009, which deferment Tenant agrees to pay back by
adding $500.00 per month to the full rental obligation
beginning in October 2009 (the “Payback Obligation”) as stated
in #4 below.
3. The full monthly rental obligation including Minimum Rent
and all Additional Rent (CAM, Taxes, Insurance, late charges,
etc.) as defined in the Lease shall be paid by Tenant beginning
April 1, 2009.
25
4. Tenant shall begin payments on its Payback Obligation
beginning October 1, 2009 and continuing for twenty-four (24)
months. Starting with the October 2009 rental payment, Tenant
shall add $500.00 per month to the monthly rental obligation, as
defined in the Lease; being Minimum Rent plus all Additional
Rent (CAM, Taxes, Insurance, late charges, etc.)
On direct-examination, Dupree testified that the parties entered into the
Amendment “to help relieve [her] of some of the payments.” Boniuk reduced the
rent for a period of time so Dupree could stay as a tenant and keep her business
going. On cross-examination, Dupree again agreed that this Amendment was
designed to “help relieve some of the financial stress [she] had in regard to [her]
business” during 2008, and she testified that, in the Amendment, Boniuk “worked
out a payment structure which helped but did not resolve the problem.” She agreed
with Boniuk’s counsel that, under the first term of the Amendment, Boniuk
essentially gave her three months in which she did not have to pay rent and that,
under the second term of the Amendment, Boniuk subtracted $3,000 per month in
rent for four months, although Dupree was obligated to repay those amounts
beginning several months later.
Both parties received a benefit as a result of the Amendment. Boniuk
retained Dupree as a tenant, and Dupree was relieved of her obligation to pay rent
for three months and then received a deferment for a portion of the rent for four
further months. Boniuk was not required to offer these rental concessions to
Dupree, and, as a result of the concessions, it essentially lost approximately
26
$15,000 in rental obligations to which it was otherwise entitled. See Walden, 97
S.W.3d at 315 (stating that consideration may consist of benefit that accrues to one
party or, alternatively, detriment that is incurred by other party). We therefore
conclude that the Amendment was supported by new consideration and is
enforceable.3
We overrule Dupree’s third issue.
Fraud
Finally, in her fourth issue, Dupree contends that the trial court erred in not
ruling that Boniuk had committed fraud when it offered into evidence a business
record that it knew contained accounting inaccuracies. Specifically, Dupree argues
that the trial court should not have admitted Exhibit D3—a “tenant payment list”
reflecting payments owed by Dupree and received by Boniuk during 2008–2011—
because Boniuk “knew that the business records were inaccurate when they were
offered for admission and were offered to deceive the court” and because “they
were offered based on fraud.”
Evidentiary rulings are committed to the trial court’s sound discretion. Bay
Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per
3
Dupree does not contend that the original Lease was unenforceable. Thus, even if
the Amendment were not supported by new consideration and were unenforceable,
the original Lease obligations, including the required rental payments, would still
have continued in effect. As we have discussed with respect to Dupree’s second
issue, the record contains evidence that Dupree breached the Lease by not making
the required rental payments.
27
curiam); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 239 (Tex. App.—
Houston [1st Dist.] 2010, no pet.). We review a trial court’s decision to admit or
exclude evidence for an abuse of discretion. Simien, 321 S.W.3d at 239. A trial
court abuses its discretion when it acts without reference to any guiding rules or
principles. Id. (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)).
To preserve error concerning the admission of evidence, the complaining
party must timely and specifically object to the admission of evidence and receive
a ruling by the trial court. See TEX. R. APP. P. 33.1(a)(1). “Error is waived if the
complaining party allows the evidence to be introduced without objection.” Bay
Area Healthcare Grp., Ltd., 239 S.W.3d at 235.
Here, Dupree argues on appeal that the trial court should not have admitted
Exhibit D3 because the exhibit contained inaccuracies,4 Boniuk knew that the
exhibit contained inaccuracies when it offered the exhibit for admission into
evidence, and Boniuk offered the exhibit “based on fraud” and “to deceive the
court.” Dupree, however, did not object in the trial court to the admission of
Exhibit D3. Instead, while cross-examining Dupree, Boniuk’s counsel and the trial
court briefly discussed Exhibit D3, and Boniuk’s counsel stated that “[Exhibit D3]
is not 100 percent accurate in its accounting” and that “it’s a mistake in our
4
Exhibit D3 did not show that while Dupree had a reduced rental obligation for
December 2008 through March 2009 under the Amendment, she was still required
to pay $1,323 in Additional Rent, and it did not show for April through August
2009 that the period of reduced rent had ended.
28
accounting and I will say that up front.” Boniuk later offered Exhibit D3 for
admission into evidence, and Dupree’s counsel stated, “That is our exhibit. No
objection.” David Boniuk testified later, in reference to Exhibit D3, that “[t]here
are some inaccuracies in this piece of paper right here.” Dupree never objected or
argued that the purported inaccuracies in Exhibit D3 rendered the exhibit
inadmissible or that Boniuk committed fraud by offering the exhibit into evidence.
We therefore conclude that Dupree waived any error concerning the admission of
Exhibit D3 into evidence. See TEX. R. APP. P. 33.1(a)(1)(A); Bay Area Healthcare
Grp., Inc., 239 S.W.3d at 235 (“Error is waived if the complaining party allows the
evidence to be introduced without objection.”).
We overrule Dupree’s fourth issue.5
5
To the extent Dupree argues that the trial court erred in entering a take-nothing
judgment against her on her fraud claim because Boniuk offered Exhibit D3 into
evidence while knowing that it contained inaccuracies, we note, as Boniuk points
out, that Dupree has not presented sufficient evidence to support every element of
a fraud cause of action. Dupree has, for example, presented no evidence that she
acted in reliance upon Boniuk’s representations concerning Exhibit D3 to her
detriment. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341
S.W.3d 323, 337 (Tex. 2011) (listing elements of fraud cause of action) (quoting
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per
curiam)). Dupree, therefore, has not established that the trial court’s implied
finding that she was not entitled to relief on her fraud claim was against the great
weight and preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at 242
(holding that appellant, when challenging adverse finding on issue on which she
had burden of proof at trial, must establish that finding was against great weight
and preponderance of evidence).
29
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
30