James C. "Jim" Greene, D/B/A Gertrude's Pizza v. NCNB Texas National Bank

CV2-319 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-319-CV





JAMES C. "JIM" GREENE, D/B/A GERTRUDE'S PIZZA,

APPELLANT

vs.





NCNB TEXAS NATIONAL BANK,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 91-2795, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

James C. "Jim" Greene, d/b/a Gertrude's Pizza (Greene), appeals the trial court's judgment notwithstanding the verdict on his claims of deceptive trade practices ⁽¹⁾ and award of attorney's fees to appellee NCNB Texas National Bank (the Bank). The suit arose out of a commercial lease transaction. We will affirm the trial court's judgment.

THE CONTROVERSY

Greene leased space in the Cedar Park Square Center (the Center) in 1986 for a term of five and one-half years. In 1988, the lease was amended to reduce the rent and change the term of the lease to "twenty-four months, beginning July 1, 1988 through June 30, 1990." Soon after this lease amendment, the Bank, acting for the FDIC, took control of the property. Shortly before the amended lease expired, Greene talked to Roger Wiley, an employee of the Wilkerson Company, the Bank's leasing agent, regarding the expiration of the lease. Greene told Wiley that he wished to lease the premises for an additional one or two years at the same rent he had been paying. Wiley told Greene that he would confer with the Bank and "get back to him."

Meanwhile, in March 1990, Greene offered to sell the business to George Thomas Kash, a Mr. Gatti's Pizza franchisee (Mr. Gatti's). Kash did not accept the offer. Greene also listed his business for sale with a broker specializing in selling businesses in July 1990, but received no offers.

On June 25, 1990, Royce Reed, the officer in the Bank's asset management department who was responsible for the Center, received a proposal from Kash to lease Greene's space in Cedar Park Square. Reed did not accept the first proposal, but continued negotiating with Mr. Gatti's until an acceptable proposal was formulated in November 1990 and approved in January 1991. ⁽²⁾ During the entire period, the Bank was attempting to sell the Center.

After June 30, 1990, Greene continued to occupy the premises, paying the same rent he had been paying under the amended lease. By letter dated January 21, 1991, the Bank gave Greene thirty days' written notice to vacate. Greene then sued the Bank. After several months of paying the higher rent specified for a holdover tenant and collected by the Bank after the notice to vacate, Greene eventually left the property in August 1991.

PROCEDURAL HISTORY

In his petition, Greene asserted a number of claims concerning the proper construction of the lease and amendment, and the manner in which the Bank had enforced the lease. The court granted a partial summary judgment in the Bank's favor, declaring the lease amendment unambiguous and holding that the lease term expired as of June 30, 1990. Trial of Greene's remaining claims and the Bank's claim for attorney's fees followed. At the conclusion of his evidence, Greene withdrew a number of his claims and the court granted the Bank an instructed verdict on other claims and allegations. The trial court submitted jury questions on the remaining claims concerning DTPA violations and attorney's fees. The trial court disregarded the jury's affirmative answers concerning the Bank's liability under the DTPA, the Bank's intentional conduct, Greene's damages and the attorney's fees. The court rendered judgment notwithstanding the verdict in the Bank's favor, and awarded the Bank its attorney's fees as found by the jury.

On appeal, Greene brings two points of error, contending that the trial court erred in: (1) submitting a jury question on the Bank's reasonable and necessary attorney's fees and rendering judgment for the amount of such fees because the Bank was not entitled to recover attorney's fees under any theory presented by its pleadings or proof; and (2) granting the Bank's motion for judgment notwithstanding the verdict on Greene's claims because there was some evidence upon which the jury could have made the findings the court disregarded. The Bank brings a cross-point that the evidence presented at trial was factually insufficient to support the jury's affirmative answer to question number one concerning false, misleading, or deceptive acts or practices.

Sufficiency of the Evidence

Standard of review

A motion for judgment notwithstanding the verdict is proper only if a directed verdict would have been proper. Tex. R. Civ. P. 301; Dodd v. Texas Farm Prods. Co., 576 S.W.2d 812, 815 (Tex. 1979). A directed verdict is proper when reasonable minds can draw only one conclusion from the evidence. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). To sustain a judgment n.o.v. on appeal, the court must determine that no evidence exists upon which the jury could have made the findings. In deciding whether there is "no evidence," we must consider all evidence in the light most favorable to the party against whom the motion was granted, and indulge every reasonable intendment deducible from the evidence in that party's favor. Dodd, 576 S.W.2d at 815. Only the evidence and inferences that support the jury finding are to be considered, and all contrary evidence and inferences should be rejected. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Greene's evidence

Greene testified that, in his conversation with Wiley, he believed he was asking for an extension of the "window" of lower rent within a lease that did not expire until June 1992. Greene also relies on Wiley's statement that the Bank would "get back to him," and on the Bank's acceptance of the same rent that he had been paying under the lease. Greene acknowledges that the Bank correctly regarded him as a holdover tenant who was seeking a new lease at his old rent, "although they never said so." He also points out that the Bank was trying to sell the Center, and that Mr. Gatti's had greater name recognition for prospective purchasers. Greene notes that the negotiations with Mr. Gatti's were not disclosed to him, but were disclosed to prospective purchasers of the Center.

From this evidence, Greene would have us infer that the Bank's intent was to retain him as a month-to-month tenant until the negotiations with Mr. Gatti's were either successful or terminated, without informing him, however, of these negotiations so that he would have time to relocate.

DTPA liability

The question submitted to the jury was whether the Bank engaged "in any false, misleading, or deceptive act or practice that was a producing cause of damages to Jim Greene d/b/a Gertrude's Pizza?" The instruction submitted with the question said:

"False, misleading, or deceptive act or practice" means any of the following:

a. Representing that goods have characteristics that they do not have; or

b. Representing that goods are of a particular quality when they are of another; or

c. Failing to disclose information about goods that was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; or

d. Causing confusion or misunderstanding as the source, sponsorship, approval, or certification of goods. ⁽³⁾

For liability to arise under definition "a" or "b," there must be evidence that the defendant made a material representation that was false. Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980). Representation has been defined as "a statement of a past or existing fact, as distinguished from a mere opinion, judgment, probability, or expectation." HOW Ins. Co. v. Patriot Fin. Servs., 786 S.W.2d 533, 543 (Tex. Civ. App.--Austin 1990, writ denied), rev'd on other grounds, 843 S.W.2d 464, 469-70 (Tex. 1992). For liability to arise under definition "c," there must be proof that the Bank failed to disclose information with the intent to induce Greene into the transaction and that had the information been disclosed, he would not have entered into the transaction. See Freeman v. Greenbriar Homes, Inc., 715 S.W.2d 394, 397 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). For liability to arise under definition "d," a deception regarding the origin or endorsement of a good or service must have occurred. See Prairie Cattle Co. v. Fletcher, 610 S.W.2d 849, 853 (Tex. Civ. App.--Amarillo 1980, writ dism'd w.o.j.). ⁽⁴⁾

We therefore examine the record for evidence of any of the above acts or practices. Greene claims no active misrepresentation as to the terms of the written lease. He complains, however, that the Bank failed to inform him explicitly that his status as of June 30, 1990, was a hold-over tenant on a month-to-month basis. He admits that he never informed the Bank that he considered the lease in effect until 1992. It is not a deceptive act on the part of the Bank to expect Greene to apprise himself of the terms of the lease. See McNeill v. McDavid Ins. Agency, 594 S.W.2d 198, 203 (Tex. Civ. App.--Fort Worth 1980, no writ)(insurance solicitor had no duty to explain terms in application to prevent the applicant from being self-deceived); First City Mortgage Co. v. Gillis, 694 S.W.2d 144, 146-47 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.)(contents of written contract not kind of information that broker had duty to disclose; amortization and prepayment terms were clear and unambiguous and applicant's ignorance of the refusal of his suggested changes was due to his agent's failure to adequately review the commitment before signing; not deceptive act that applicant not specifically informed). There is no evidence of overreaching. Greene testified that he had negotiated several commercial leases before this, including the amendment to this lease.

Conflicting interpretations of a contract are not in and of themselves DTPA violations. Group Hosp. Serv., Inc. v. One & Two Brookriver Ctr., 704 S.W.2d 886, 889 (Tex. App.--Dallas 1986, no writ). Neither are attempts to enforce a contract as written. Quitta v. Fossati, 808 S.W.2d 636, 645 (Tex. App.--Corpus Christi 1991, writ denied)(alleged oral modification of lease not communicated to co-owners before maker died; attempts by co-owners to enforce lease as written, rather than tenant's version of lease with oral modifications, not DTPA violation).

Greene claims that the Bank's continued acceptance of the same rent he had been paying was an act that mislead him into believing the lease was still in effect. The judge instructed a verdict against Greene on waiver and estoppel, however. The Bank's legitimate exercise of its rights under the lease was not deceptive.

To show a DTPA violation, Greene relies heavily on the Bank's failure to disclose its negotiations with Mr. Gatti's. He cites no authority for the proposition that, under these circumstances, the Bank had a duty to disclose the negotiations. He testified that he did not rely on the Bank for advice; i.e., there was no fiduciary-type relationship that might have created such a duty. A business has no general duty to disclose information to anyone who might be interested or affected by that knowledge. See Northwest Otolaryngology Assoc. v. Mobilease, Inc., 786 S.W.2d 399, 405 (Tex. App.--Texarkana 1990, writ denied)(no duty to disclose to lessee that lessor of vehicle purchased car and then marked up price $1420 before offering for lease; entities that lease or sell vehicles are allowed to make a profit and not required to divulge the amount to their customers). Further, there is no evidence that the Bank's failure to disclose its negotiations caused Greene harm. To the contrary, Greene testified that because, under his interpretation, the lease did not expire until 1992, he would not have acted differently even if he had known of the negotiations with Mr. Gatti's. He would not have vacated the property and would have sued on receipt of the notice to vacate.

We overrule point of error two. Because of our disposition of this point, we need not address the Bank's cross-point.

Attorney's Fees

In point of error one, appellant contends the trial court erred in submitting a jury question on the Bank's reasonable and necessary attorney's fees and in rendering judgment for the amount of such fees because the Bank was not entitled to recover attorney's fees under any theory presented by its pleadings or proof.

The Bank asked for attorney's fees under a provision in the lease ⁽⁵⁾; under the Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1986); and under general provisions for suits involving contracts, Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 1986). Greene's theory is that after the court rendered summary judgment declaring that the lease expired June 30, 1990, no claims remained involving construction of the lease that would support a claim for attorney's fees. Similarly, he contends that the lease provisions for attorney's fees do not apply because the proceedings after the summary judgment did not construe the lease or determine any right or obligation arising from it.

The Bank responds that it is entitled to attorney's fees because the lease at issue provides that the successful party is entitled to recover its attorney's fees in prosecuting or defending any action to enforce rights "arising from" the lease. At the trial, Greene asserted that the Bank's enforcement, or lack thereof, of the lease lead Greene to believe that the lease did not expire until July 1992; that the bank mislead him about its right to terminate his tenancy on thirty-days notice because the Bank's continued acceptance of rent payments specified in the amended lease caused him to believe he still had a lease; and that the Bank committed deceptive trade practices and unfair business practices by, among other things, not disclosing its negotiations with Mr. Gatti's for the space.

After Greene rested, the Bank moved for an instructed verdict. At that point, Greene withdrew claims for breach of the duty of good faith and fair dealing, negligent misrepresentation, and constructive eviction. The court granted the Bank an instructed verdict on breach of contract, waiver, estoppel, ratification, negligence, gross negligence, and fraudulent concealment. The evidence was completed ⁽⁶⁾ later that day, and the next morning the court charged the jury on liability under the DTPA.

The prevailing party to a lawsuit is entitled to recover attorney's fees if provided by contract or statute. New Amsterdam Casualty Co. v. Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967). In general, in cases involving more than one claim, attorney's fees can be awarded only for necessary legal services rendered in connection with the claims for which recovery is authorized. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991); Flint & Assoc. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624 (Tex. App.--Dallas 1987, writ denied). If, however, all claims arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts, then fees may be awarded for all services, even if recovery of attorney's fees is not authorized for some of the claims. Stewart Title Co., 822 S.W.2d at 11; Great Am. Ins. Co. v. North Austin Mun. Util. Dist., 850 S.W.2d 285 (Tex. App.--Austin 1993, writ requested); Flint & Assoc., 739 S.W.2d at 624-25.

We think the lease provision allows the Bank to recover attorney's fees. The lease speaks of "successful . . . defense of any proceedings to . . . enforce any right . . . arising from it . . . ." The Bank's defense to all of Greene's claims was that it was enforcing various rights under the lease: the right to rent the space to another tenant; the right to have Greene vacate the space on thirty-days notice; and the right to collect the lower rent without waiving its right to the higher rent specified for a month-to-month situation. We think this was an action to defend the Bank's rights under the lease within the meaning of the lease provision. We overrule point of error one, and affirm the trial court's judgment.

[Before Chief Justice Carroll, Justices Aboussie and Jones; Justice Aboussie not participating]

Affirmed

Filed: August 25, 1993

[Do Not Publish]

1. ¹ Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (West 1987 & Supp. 1993) (hereafter cited as DTPA § ).

2. ² Because the Bank was managing the property on behalf of the FDIC, regulatory approvals were necessary to expend the money on finish-out costs.

3. ³ Instructions a and b paraphrase DTPA § 17.46(b)(5) and (b)(7). Instruction c paraphrases DTPA § 17.46(b)(23), and d, DTPA § 17.46(b)(2).

Because we will dispose of the evidentiary points based on the existence, or lack thereof, of a false, misleading, or deceptive act, we do not need to define exactly what constituted the "good" that was the subject of this instruction. The court defined "Goods" in the charge as "tangible chattels or real property purchased or leased for use." But Greene does not contend that a misrepresentation was made about the physical condition of the premises. The issues basically center around the terms of the occupancy of the space, rather than the space itself.

4. ⁴ It is difficult to see how this instruction is relevant. This DTPA section is usually applied to situations such as a false representation that a doctor has endorsed a seller's product; that a seller has an affiliation with the government; or that a seller's product has been government tested or approved. See David F. Bragg, Philip K. Maxwell, Joe K. Longley, Texas Consumer Litigation § 3.05, at 80 (2d ed. 1983).

5. ⁵ The lease provided:

Court costs and attorney's fees incurred by either party hereto in successful prosecution or defense of any legal or equitable proceedings to construe this lease or enforce any right or obligation arising from it shall become an obligation due and payable from the other party.

6. ⁶ The evidence presented by the Bank after the instructed verdict was testimony from Greene about the conversation with Wiley; testimony from Reed about the Bank's management of the Center and attempts to sell it; and testimony from the Bank about its attorney's fees.