BREOF Bnk Texas, L.P. v. D.H. Hill Advisors, Inc. and D.H. Hill, Individually
370 S.W.3d 58
Tex. App.2012Background
- Breof BNK Texas, L.P. is landlord; D.H. Hill Advisors, Inc. is tenant; Dan Hill is Advisors’ principal investor.
- Bench trial resulted in a take-nothing judgment against Breof; Advisors and Hill awarded actual damages and fees.
- Negotiations for a new lease focused on installing an ADA restroom and other improvements before November 1, 2008.
- Breof began work in mid-2008 but faced plan discrepancies and delays; November 1 deadline remained unfulfilled.
- Advisors vacated the premises and relocated, incurring moving expenses; Breof sought recovery on various breach-related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material-term timing of November 1, 2008 breach | Breof: November 1 not material; time not of essence | Advisors: restroom deadline essential to deal | November 1 was a material term; Breof breach excused Advisors’ duties |
| Breach attribution: Breof vs Advisors | Breof: Advisors breached by vacating before completion | Advisors: Breof failed to timely complete per terms | Breof breached; Advisors not liable for breach by leaving due to Breof’s delay |
| Mutual mistake claim | Breof: mutual mistake regarding restroom location | Trial court did not find mutual mistake | No reversible error; no mutual mistake found; affirm trial court’s findings |
| Waiver of strict compliance | Breof: Advisors waived strict performance by accepting rent | Non-waiver clause valid; no waiver by Advisors | Non-waiver clause enforced; no waiver found |
| Damages and evidence of moving expenses | Breof: moving-expenses evidence improperly admitted; 15.4 bar on consequential damages | Evidence properly admitted; 15.4 waived by Breof for appellate review | Moving expenses properly admitted; 15.4 argument waived; damages affirmed |
Key Cases Cited
- Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842 (Tex. App.—Dallas 2008, no pet.) (time-of-performance as material term, de novo review of material terms)
- Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (time-of-essence generally; factual question unless expressly stated otherwise)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (time of performance material breach when time is essence)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (factual sufficiency standard; reviewing court defers to trial court on credibility)
- Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (legal sufficiency standard for challenging adverse findings)