Drury Southwest, Inc. v. Louie Ledeaux 1, Inc.
350 S.W.3d 287
| Tex. App. | 2011Background
- Drury Southwest owns property hosting hotels and restaurants and leases space to Ledeaux to operate a Mexican restaurant; lease dated August 7, 2007, restaurant opened December 7, 2007.
- Drury promised an outdoor patio and a reader-board sign; neither was installed.
- Delays occurred due to permit issues, property ownership disputes, and a highway exit not reopening after city construction.
- March 5, 2008 meeting discussed changing the restaurant format; five days later Drury locked Ledeaux out and offered $1, while Ledeaux had invested hundreds of thousands.
- Ledeaux counterclaimed for breach of contract, fraud, negligent misrepresentation, Property Code violations, and DTPA; trial court found Drury breached, committed fraud, negligent misrepresentation, and DTPA violations.
- Damages awarded under the DTPA were $625,000 actual and $450,000 for knowing conduct; after remittitur final judgment totaled $1,139,000 with attorney’s fees of $23,608.56.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of DTPA liability evidence | Ledeaux argues Drury misrepresented rights to signage and failed to disclose permit realities. | Drury contends misrepresentations were contractual promises and insufficient for DTPA liability. | Evidence supports DTPA liability based on misrepresentation of rights. |
| Excessiveness of compensatory damages | Damages reflect Ledeaux’s actual losses plus sweat equity, within the trial record. | Damages exceed evidentiary support and are not within the proven range. | Compensatory award unwarranted; damages not within the range supported by evidence. |
| Remand and election of remedies | Ledeaux should be allowed to elect remedies on remand to obtain greatest relief. | Drury contends election of remedies is improper or would cause double recovery. | Remand for re-election of remedies is proper to prevent double recovery. |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency standard for appellate review)
- Wingate v. Hajdik, 795 S.W.2d 717 (Tex. 1990) (owners cannot recover personal sweat equity as damages to corporation)
- Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361 (Tex. 1987) (election of remedies and greater relief principle)
- Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311 (Tex.App.-San Antonio 2007) (remand allows re-election without double recovery)
- Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (excessive-damages standard involving factual sufficiency)
- Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128 (Tex.App.-San Antonio 1987) (election of remedies and remedy framework)